California Assembly Bill AB1763 Amended / Bill

 BILL NUMBER: AB 1763AMENDED BILL TEXT AMENDED IN SENATE AUGUST 18, 2010 AMENDED IN SENATE JULY 15, 2010 AMENDED IN ASSEMBLY APRIL 8, 2010 INTRODUCED BY Assembly Member Lieu FEBRUARY 9, 2010 An act to amend Sections 12301.6 and 12305.86 of, and to add Section  12305.87   15661  to, the Welfare and Institutions Code, relating to public social services, and declaring the urgency thereof, to take effect immediately. LEGISLATIVE COUNSEL'S DIGEST AB 1763, as amended, Lieu. In-home supportive services. 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 permits 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.  The IHSS program is administered at the statewide level by the State Department of Social Services. Existing law requires the department to convene periodic meetings in which supportive services recipients, providers, advocates, IHSS provider representatives, organizations representing recipients, counties, public authorities, nonprofit consortia, and other interested stakeholders may receive information and have the opportunity to provide input to the department regarding the quality assurance, program integrity, and program consistency efforts, as specified.   This bill would require the department, in consultation and coordination with county welfare departments, to establish guidelines to provide counties with instructions to consistently and accurately comply with the requirements of the IHSS program.  Existing law requires that criminal background checks be conducted for prospective and existing IHSS providers.  Under existing law, if an applicant or provider is rejected as a result of information in a criminal background report, the applicant or provider shall receive a copy of the report to review the information for accuracy and   completeness. Existing law requires the applicant or provider to be advised of his or her right to submit a formal challenge, as specified, if the applicant or provider finds information in the report to be inaccurate or incomplete.   This bill, if specified conditions are met, would authorize a public authority or nonprofit consortium to provide an individual with a copy of his or her state-level criminal offender record information search response provided to the entity by the Department of Justice, if the individual is denied placement on the registry, or if the individual's application for providing supportive services to an IHSS recipient has been denied.   This bill would revise the above provisions, including deleting the individual's right to formally challenge the information in the criminal record report, and to waive specified fees associated with obtain a copy of the report. This bill would specify that an individual's criminal offender record information search response shall not be made available to any other individual, and requiring a public authority or nonprofit consortium to provide thee information in such a manner as to protect the confidentiality and privacy of the individual that is the subject of the information. The bill would require the public authority or nonprofit consortium to retain a copy of each individual's criminal offender record search response, and record the dates that copies of the response were provided to the individual and the department. To the extent that these procedures would impose additional duties on counties administering the IHSS program, this bill would create a state-mandated local program.   This bill, with respect to a person who seeks to become an IHSS provider and who is not listed on a registry, would permit 2 or more adjacent or contiguous counties, or public authorities or nonprofit consortia within those counties, to agree to designate one county, public authority, or nonprofit consortium to send fingerprints to the Department of Justice for a criminal background check, to receive responses from the Department of Justice, and to maintain common lists of persons eligible for employment, as prescribed.   This bill, if specified conditions are met, would require a county, nonprofit consortium, or public authority authorized to secure a criminal background check clearance to accept a clearance for an individual, as prescribed, from another county, nonprofit consortium, or public authority with criminal background check authority. By imposing new duties on counties, this bill would create a state-mandated local program.   This bill, if specified conditions are met, would also require a county, nonprofit consortium, or public authorityto obtain subsequent arrest notifications issued by the Department of Justice for a provider whose criminal record clearance was originally processed by another county, nonprofit consortium, or public authority with criminal background check authority.  The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions. This bill would declare that it is to take effect immediately as an urgency statute. Vote: 2/3. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes. 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. Upon the effective date of the amendments to this section made during the 2009-10 Fourth Extraordinary Session of the Legislature, the 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, 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. 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. (B) (i)  If an applicant or provider is rejected as a result of information contained in the criminal background report, the applicant or provider shall receive a copy of his or her own criminal history record from the Department of Justice, as provided in Article 5 (commencing with Section 11120) of Chapter 1 of Title 1 of Part 4 of the Penal Code, to review the information for accuracy and completeness. The applicant or provider shall be advised that if, upon review of his or her own criminal history record he or she finds the information to be inaccurate or incomplete, the applicant or provider shall have the right to submit a formal challenge to the Department of Justice to contest the criminal background report.   Notwithstanding any other provision of law, the public authority or nonprofit consortium shall provide an individual and the department with a copy of the individual's criminal offender record information search response, as provided to the public authority or nonprofit consortium by the Department of Justice, if the individual has been denied placement on the registry for providing supportive services to any recipient of services under the In-Home Supportive Services program based on that information. The criminal offender record information search response shall not be made available to any other individual. A criminal record information search response shall not be modified or altered from its form or content as provided by the Department of Justice. The public authority or nonprofit consortium shall provide an individual's criminal offender record information search response in such a manner as to protect the confidentiality and privacy of the criminal offender record information search response. The   public authority or nonprofit consortium shall retain a copy of each individual's criminal offender record information search response and record the date the copy of the response was provided to the individual and the department.  (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.  (C) An applicant shall be informed of his or her right to a waiver of the fee for obtaining a copy of a criminal history record, and of how to submit a claim and proof of indigency, as required by Section 11123 of the Penal Code.   (D)   (C)  Nothing in this paragraph shall 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)   (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. (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 provision of 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) Commencing July 1, 1997, the 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 provision of 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 only be implemented 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) Effective October 1, 2009, a 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. (b) 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. Criminal background checks shall be conducted at the provider's expense. (c) 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. (1)  If an applicant or provider is rejected as a result of information contained in the criminal background report, the applicant or provider shall receive a copy of his or her own criminal history record from the Department of Justice, as provided in Article 5 (commencing with Section 11120) of Chapter 1 of Title 1 of Part 4 of the Penal Code, to review the information for accuracy and completeness. The applicant or provider shall be advised that if, upon review of his or her own criminal history record, he or she finds the information to be inaccurate or incomplete, the applicant or provider shall have the right to submit a formal challenge to the Department of Justice to contest the criminal background report.   Notwithstanding any other provision of law, a county shall provide an individual and the department with a copy of the individual's criminal offender record information search response, as provided to the county by the Department of Justice, if the individual has been denied placement on the registry for providing supportive services to any recipient of services under the In-Home Supportive Services program based on that information. The criminal offender record information search response shall not be made available to any other individual. A criminal record information search response shall not be modified or altered from its form or content as provided by the Department of Jus   tice. The county shall provide an individual's criminal offender record information search response in such a manner as to protect the confidentiality and privacy of the criminal offender record   information search response. The county shall retain a copy of each individual's criminal offender record information search response and record the date the copy of the response was provided to the individual and the department.  (2) 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.  (3) An applicant shall be informed of his or her right to a waiver of the fee for obtaining a copy of a criminal history record, and of how to submit a claim and proof of indigency, as required by Section 11123 of the Penal Code.  (d) Nothing in this section shall 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) The department shall seek federal financial participation, to the extent possible, to cover any costs associated with this section.  SEC. 3.   Section 15661 is added to the   Welfare and Institutions Code   , to read:   15661. With respect to a person who seeks to become an in-home supportive services provider and who is not listed on the registry of a public authority, nonprofit consortium, or county, two or more adjacent or contiguous counties, or public authorities or nonprofit consortia within those counties, may agree to designate one county, public authority, or nonprofit consortium for the purposes of sending fingerprints to the Department of Justice for a criminal background check, receiving responses from the Department of Justice pursuant to Section 15660, or Section 11105.2 of the Penal Code, and maintaining common lists of persons eligible for employment. (a) The county, public authority, or nonprofit consortium serving in the capacity authorized by this section shall be considered the employer of the in-home supportive services provider. (b) Upon receipt from the Department of Justice of a response with a disqualifying conviction, the county, public authority, or nonprofit consortium designated by this section shall communicate that fact to the other participating counties, public authorities, and nonprofit consortia, and shall not add the affected prospective provider to the common list of persons eligible for employment. (c) Upon receipt from the Department of Justice of a notice pursuant to Section 11105.2 of the Penal Code for a person on a common list of persons eligible for employment, the designated county, public authority, or nonprofit consortium shall notify the other participating counties, public authorities, and nonprofit consortia, that the notice is available for inspection on a confidential basis at the office of the designated county, public authority, or nonprofit consortium for 30 days following receipt of the notice. The designated county, public authority, or nonprofit consortium shall not release a copy of the notice to any of the participating counties, public authorities, and nonprofit consortia, and shall retain or dispose of the notice in the manner required by law, after all participating counties, public authorities, and nonprofit consortia have had an opportunity to inspect it in accordance with this subdivision. The designated county, public authority, or nonprofit consortium shall maintain a record of all persons to whom the notice has been shown, which shall be available to the Department of Justice, to monitor compliance with the confidentiality requirements of this section. (d) Entities entering into an agreement pursuant to this section shall submit an interagency agreement to the Department of Justice to establish authorization to submit and receive information pursuant to this section.   SEC. 4.   If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.   SEC. 5.   This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are:   In order to ensure that IHSS program requirements, including criminal background checks, are uniformly and appropriately applied to providers at the earliest possible time, it is necessary for this act to take effect immediately.  All matter omitted in this version of the bill appears in the bill as amended in the Senate July 15, 2010. (JR11)