California Legislature—2013–14 Regular Session

Assembly Bill No. 2641

Introduced by Assembly Member Patterson

February 21, 2014

An act to amend Section 12305.81 of, and to repeal Section 12305.87 of, the Welfare and Institutions Code, relating to in-home supportive services.

LEGISLATIVE COUNSEL’S DIGEST

AB 2641, as introduced, Patterson. In-Home Supportive Services program: provider exclusions: crimes.

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.

Under existing law, a person is prohibited from providing or receiving payment for providing services for 10 years following conviction for, or incarceration following conviction for specified crimes, including fraud against a government health care or supportive services program. Existing law, subject to provisions authorizing waivers and exemptions, also prohibits a person from providing or receiving payment for providing services for 10 years following a conviction for, or incarceration following a conviction for, a serious or violent felony, a felony for which registration as a sex offender is required, or a felony misuse of CalFresh funds.

This bill would repeal the provisions that authorize a waiver or exemption from the 10-year exclusion for a person who has committed a serious or violent felony, a felony for which registration as a sex offender is required, or a felony misuse of CalFresh funds.

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 12305.81 of the Welfare and Institutions
Code is amended to read:

12305.81.  

(a) Notwithstanding any other law, a person shall
not be eligible to provide or receive payment for providing
supportive services for 10 years following a conviction for, or
incarceration following a conviction for, begin delete fraud end delete begin insert any of the following: end insert

begin insert (1) end insert begin insert   end insert begin insert Fraud end insert against a government health care or supportive
services program, including Medicare, Medicaid, or services
provided under Title V, Title XX, or Title XXI of the federal Social
Security Act begin delete or a end delete begin insert . end insert

begin insert (2) end insert begin insert   end insert begin insert A end insert violation of subdivision (a) of Section 273a of the Penal
Code, or Section 368 of the Penal Code, or similar violations in
another jurisdiction. begin delete The end delete

begin insert

(3) A violent or serious felony, as specified in subdivision (c)
of Section 667.5 of the Penal Code and subdivision (c) of Section
1192.7 of the Penal Code.

end insert begin insert

(4) A felony offense for which a person is required to register
under subdivision (c) of Section 290 of the Penal Code. The 10-year
time period specified in this section shall commence with the date
of conviction for, or incarceration following a conviction for, the
underlying offense, and not the date of registration.

end insert begin insert

(5) A felony offense described in paragraph (2) of subdivision
(c) or paragraph (2) of subdivision (g) of Section 10980.

end insert

begin insert (b) end insert begin insert   end insert begin insert The end insert department and the State Department of Health Care
Services shall develop a provider enrollment form that each person
seeking to provide supportive services shall complete, sign under
penalty of perjury, and submit to the county. Submission of the
form shall include the photocopying by the county of original
documentation verifying the provider’s identity, and shall be
considered as an application to render services under the Medi-Cal
program consistent with subdivision (c) of Section 14043.1. A
provider shall submit the form to the county in person, and the
county shall retain the form and a copy of the identification
documentation in the file of the provider. The form shall begin delete contain end delete
begin insert include end insert statements begin delete to the following effect: end delete begin insert that contain all of the
following: end insert

(1)  begin delete A end delete begin insert Notice that a end insert person who, in the last 10 years, has been
convicted for, or incarcerated following conviction for, begin delete fraud
against a government health care or supportive services program end delete
begin insert any of the crimes listed in subdivision (a) end insert is not eligible to be
enrolled as a provider or to receive payment for providing
supportive services.

begin delete

(2) An individual who, in the last 10 years, has been convicted
for, or incarcerated following conviction for, a violation of
subdivision (a) of Section 273a of the Penal Code or Section 368
of the Penal Code, or similar violations in another jurisdiction, is
not eligible to be enrolled as a provider or to receive payment for
providing supportive services.

end delete begin delete

(3)

end delete

begin insert (2) end insert  A statement declaring that the person has not, in the last 10
years, been convicted or incarcerated following conviction for begin delete a
crime involving fraud against a government health care or
supportive services program end delete begin insert any of the crimes listed in subdivision
(a) end insert .

begin delete

(4) A statement declaring that he or she has not, in the last 10
years, been convicted for, or incarcerated following conviction
for, a violation of subdivision (a) of Section 273a of the Penal
Code or Section 368 of the Penal Code, or similar violations in
another jurisdiction.

end delete begin delete

(5) The

end delete

begin insert (3) end insert   begin insert A statement that the end insert person agrees to reimburse the state for
any overpayment paid to the person as determined in accordance
with Section 12305.83, and that the amount of any overpayment,
individually or in the aggregate, may be deducted from any future
warrant to that person for services provided to any recipient of
supportive services, as authorized in Section 12305.83.

begin delete

(b)

end delete

begin insert (c) end insert  The department shall include the text of subdivision (a) of
Section 273a of the Penal Code begin delete and end delete begin insert , subdivision (c) of Section 290
of the Penal Code, end insert Section 368 of the Penal Code begin insert , subdivisions
(c) and (g) of Section 667.5 of the Penal Code, subdivision (c) of
Section 1192.7 of the Penal Code, and subdivision (g) of Section
10980 end insert on the provider enrollment form.

begin delete

(c)

end delete

begin insert (d) end insert  A public authority or nonprofit consortium that is notified
by the department or the State Department of Health Care Services
that a supportive services provider is ineligible to receive payments
under this chapter or under Medi-Cal law shall exclude that
provider from its registry.

begin delete

(d)

end delete

begin insert (e) end insert  A public authority or nonprofit consortium that determines
that a registry provider is not eligible to provide supportive services
based on the requirements of subdivision (a) shall report that
finding to the department.

SEC. 2.  

Section 12305.87 of the Welfare and Institutions Code
is repealed.

begin delete

12305.87.  

(a) (1) Commencing 90 days following the effective
date of the act that adds this section, a person specified in paragraph
(2) shall be subject to the criminal conviction exclusions provided
for in this section, in addition to the exclusions required under
Section 12305.81.

(2) This section shall apply to a person who satisfies either of
the following conditions:

(A) He or she is a new applicant to provide services under this
article.

(B) He or she is an applicant to provide services under this
article whose application has been denied on the basis of a
conviction and for whom an appeal of that denial is pending.

(b) Subject to subdivisions (c), (d), and (e), an applicant subject
to this section shall not be eligible to provide or receive payment
for providing supportive services for 10 years following a
conviction for, or incarceration following a conviction for, any of
the following:

(1) A violent or serious felony, as specified in subdivision (c)
of Section 667.5 of the Penal Code and subdivision (c) of Section
1192.7 of the Penal Code.

(2) A felony offense for which a person is required to register
under subdivision (c) of Section 290 of the Penal Code. For
purposes of this paragraph, the 10-year time period specified in
this section shall commence with the date of conviction for, or
incarceration following a conviction for, the underlying offense,
and not the date of registration.

(3) A felony offense described in paragraph (2) of subdivision
(c) or paragraph (2) of subdivision (g) of Section 10980.

(c) Notwithstanding subdivision (b), an application shall not be
denied under this section if the applicant has obtained a certificate
of rehabilitation under Chapter 3.5 (commencing with Section
4852.01) of Title 6 of Part 3 of the Penal Code or if the information
or accusation against him or her has been dismissed pursuant to
Section 1203.4 of the Penal Code.

(d) (1) Notwithstanding subdivision (b), a recipient of services
under this article who wishes to employ a provider applicant who
has been convicted of an offense specified in subdivision (b) may
submit to the county an individual waiver of the exclusion provided
for in this section. This paragraph shall not be construed to allow
a recipient to submit an individual waiver with respect to a
conviction or convictions for offenses specified in Section
12305.81.

(2) The county shall notify a recipient who wishes to hire a
person who is applying to be a provider and who has been
convicted of an offense subject to exclusion under this section of
that applicant’s relevant criminal offense convictions that are
covered by subdivision (b). The notice shall include both of the
following:

(A) A summary explanation of the exclusions created by
subdivision (b), as well as the applicable waiver process described
in this subdivision and the process for an applicant to seek a general
exception, as described in subdivision (e). This summary
explanation shall be developed by the department for use by all
counties.

(B) An individual waiver form, which shall also be developed
by the department and used by all counties. The waiver form shall
include both of the following:

(i) A space for the county to include a reference to any Penal
Code sections and corresponding offense names or descriptions
that describe the relevant conviction or convictions that are covered
by subdivision (b) and that the provider applicant has in his or her
background.

(ii) A statement that the service recipient, or his or her authorized
representative, if applicable, is aware of the applicant’s conviction
or convictions and agrees to waive application of this section and
employ the applicant as a provider of services under this article.

(3) To ensure that the initial summary explanation referenced
in this subdivision is comprehensible for recipients and provider
applicants, the department shall consult with representatives of
county welfare departments and advocates for, or representatives
of, recipients and providers in developing the summary explanation
and offense descriptions.

(4) The individual waiver form shall be signed by the recipient,
or by the recipient’s authorized representative, if applicable, and
returned to the county welfare department by mail or in person.
Except for 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 a recipient, a provider applicant
shall not sign his or her own individual waiver form as the
recipient’s authorized representative. The county shall retain the
waiver form and a copy of the provider applicant’s criminal offense
record information search response until the date that the
convictions that are the subject of the waiver request are no longer
within the 10-year period specified in subdivision (b).

(5) An individual waiver submitted pursuant to this subdivision
shall entitle a recipient to hire a provider applicant who otherwise
meets all applicable enrollment requirements for the In-Home
Supportive Services program. A provider hired pursuant to an
individual waiver may be employed only by the recipient who
requested that waiver, and the waiver shall only be valid with
respect to convictions that are specified in that waiver. A new
waiver shall be required if the provider is subsequently convicted
of an offense to which this section otherwise would apply. A
provider who wishes to be listed on a provider registry or to provide
supportive services to a recipient who has not requested an
individual waiver shall be required to apply for a general exception,
as provided for in subdivision (e).

(6) Nothing in this section shall preclude a provider who is
eligible to receive payment for services provided pursuant to an
individual waiver under this subdivision from being eligible to
receive payment for services provided to one or more additional
recipients who obtain waivers pursuant to this same subdivision.

(7) The state and a county shall be immune from any liability
resulting from granting an individual waiver under this subdivision.

(e) (1) Notwithstanding subdivision (b), an applicant who has
been convicted of an offense identified in subdivision (b) may seek
from the department a general exception to the exclusion provided
for in this section.

(2) Upon receipt of a general exception request, the department
shall request a copy of the applicant’s criminal offender record
information search response from the applicable county welfare
department, public authority, or nonprofit consortium.
Notwithstanding any other provision of law, the county, public
authority, or nonprofit consortium shall provide a copy of the
criminal offender record information search response, as provided
to the county, public authority, or nonprofit consortium by the
Department of Justice, to the department. The county, public
authority, or nonprofit consortium shall provide this information
in a manner that protects the confidentiality and privacy of the
criminal offender record information search response. The state
or federal criminal history record information search response shall
not be modified or altered from its form or content as provided by
the Department of Justice.

(3) The department shall consider the following factors when
determining whether to grant a general exception under this
subdivision:

(A) The nature and seriousness of the conduct or crime under
consideration and its relationship to employment duties and
responsibilities.

(B) The person’s activities since conviction, including, but not
limited to, employment or participation in therapy education, or
community service, that would indicate changed behavior.

(C) The number of convictions and the time that has elapsed
since the conviction or convictions.

(D) The extent to which the person has complied with any terms
of parole, probation, restitution, or any other sanction lawfully
imposed against the person.

(E) Any evidence of rehabilitation, including character
references, submitted by the person, or by others on the person’s
behalf.

(F) Employment history and current or former employer
recommendations. Additional consideration shall be given to
employer recommendations provided by a person who has received
or has indicated a desire to receive supportive or personal care
services from the applicant, including, but not limited to, those
services, specified in Section 12300.

(G) Circumstances surrounding the commission of the offense
that would demonstrate the unlikelihood of repetition.

(H) The granting by the Governor of a full and unconditional
pardon.

(f) If the department makes a determination to deny an
application to provide services pursuant to a request for a general
exception, the department shall notify the applicant of this
determination by either personal service or registered mail. The
notice shall include the following information:

(1) A statement of the department’s reasons for the denial that
evaluates evidence of rehabilitation submitted by the applicant, if
any, and that specifically addresses any evidence submitted relating
to the factors in paragraph (3) of subdivision (e).

(2) A copy of the applicant’s criminal offender record
information search response, even if the applicant already has
received a copy pursuant to Section 12301.6 or 12305.86. The
department shall provide this information in a manner that protects
the confidentiality and privacy of the criminal offender record
information search response.

(A) The state or federal criminal history record shall not be
modified or altered from its form or content as provided by the
Department of Justice.

(B) The department shall retain a copy of each individual’s
criminal offender record information search response until the date
that the convictions that are the subject of the exception are no
longer within the 10-year period specified in subdivision (b), and
shall record the date the copy of the response was provided to the
individual and the department.

(C) The criminal offender record information search response
shall not be made available by the department to any individual
other than the provider applicant.

(g) (1) Upon written notification that the department has
determined that a request for exception shall be denied, the
applicant may request an administrative hearing by submitting a
written request to the department within 15 business days of receipt
of the written notification. Upon receipt of a written request, the
department shall hold an administrative hearing consistent with
the procedures specified in Section 100171 of the Health and Safety
Code, except where those procedures are inconsistent with this
section.

(2) A hearing under this subdivision shall be conducted by a
hearing officer or administrative law judge designated by the
director. A written decision shall be sent by certified mail to the
applicant.

(h) The department shall revise the provider enrollment form
developed pursuant to Section 12305.81 to include both of the
following:

(1) The text of subdivision (c) of Section 290 of the Penal Code,
subdivision (c) of Section 667.5 of the Penal Code, subdivision
(c) of Section 1192.7 of the Penal Code, and paragraph (2) of
subdivisions (c) and (g) of Section 10980.

(2) A statement that the provider understands that if he or she
has been convicted, or incarcerated following conviction for, any
of the crimes specified in the provisions identified in paragraph
(b) in the last 10 years, and has not received a certificate of
rehabilitation or had the information or accusation dismissed, as
provided in subdivision (c), he or she shall only be authorized to
receive payment for providing in-home supportive services under
an individual waiver or general exception as described in this
section, and upon meeting all other applicable criteria for
enrollment as a provider in the program.

(i) (1) Notwithstanding the rulemaking provisions of the
Administrative Procedure Act (Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code), the department may implement and administer this section
through all-county letters or similar instructions from the
department until regulations are adopted. The department shall
adopt emergency regulations implementing these provisions no
later than July 1, 2011. The department may readopt any emergency
regulation authorized by this section that is the same as or
substantially equivalent to an emergency regulation previously
adopted under this section.

(2) The initial adoption of emergency regulations pursuant to
this section and one readoption of emergency regulations shall be
deemed an emergency and necessary for the immediate
preservation of the public peace, health, safety, or general welfare.
Initial emergency regulations and the one readoption of emergency
regulations authorized by this section shall be exempt from review
by the Office of Administrative Law. The initial emergency
regulations and the one readoption of emergency regulations
authorized by this section shall be submitted to the Office of
Administrative Law for filing with the Secretary of State and each
shall remain in effect for no more than 180 days, by which time
final regulations may be adopted.

(j) In developing the individual waiver form and all-county
letters or information notices or similar instructions, the department
shall consult with stakeholders, including, but not limited to,
representatives of the county welfare departments, and
representatives of consumers and providers. The consultation shall
include at least one in-person meeting prior to the finalization of
the individual waiver form and all-county letters or information
notices or similar instructions.

end delete