Bill Text: CA AB876 | 2011-2012 | Regular Session | Chaptered
Bill Title: In-Home Supportive Services program.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2011-07-08 - Chaptered by Secretary of State - Chapter 73, Statutes of 2011. [AB876 Detail]
Download: California-2011-AB876-Chaptered.html
BILL NUMBER: AB 876 CHAPTERED
BILL TEXT
CHAPTER 73
FILED WITH SECRETARY OF STATE JULY 8, 2011
APPROVED BY GOVERNOR JULY 7, 2011
PASSED THE SENATE JUNE 23, 2011
PASSED THE ASSEMBLY MAY 19, 2011
AMENDED IN ASSEMBLY MAY 16, 2011
AMENDED IN ASSEMBLY MARCH 31, 2011
INTRODUCED BY Assembly Member Valadao
FEBRUARY 17, 2011
An act to amend Section 12305.87 of the Welfare and Institutions
Code, relating to in-home supportive services.
LEGISLATIVE COUNSEL'S DIGEST
AB 876, Valadao. In-Home Supportive Services program.
Existing law provides for the county-administered In-Home
Supportive Services (IHSS) program, under which qualified aged,
blind, and disabled persons receive services enabling them to remain
in their own homes. Existing law prohibits a person from providing
supportive services if he or she has been convicted of specified
crimes in the previous 10 years. Existing law authorizes a recipient
of services who wishes to employ a provider applicant who has been
convicted of a specified offense to submit to the county a prescribed
individual waiver, signed by the recipient, or by the recipient's
authorized representative, and returned to the county welfare
department.
This bill would, except for specified individuals, prohibit a
provider applicant from signing his or her own individual waiver form
as the recipient's authorized representative.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 12305.87 of the Welfare and Institutions Code
is amended to read:
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. Notwithstanding any other provision of law, the county
shall provide a copy of the criminal offender record information
search response, as provided to the county by the Department of
Justice, to the department. The county 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.
