ABX4 19 (2009): In-Home Supportive Services
Tue, 2010-02-02 22:40 — chris
BILL NUMBER: ABX4 19 CHAPTERED
BILL TEXT
CHAPTER 17
FILED WITH SECRETARY OF STATE JULY 28, 2009
APPROVED BY GOVERNOR JULY 28, 2009
PASSED THE SENATE JULY 24, 2009
PASSED THE ASSEMBLY JULY 24, 2009
AMENDED IN SENATE JULY 24, 2009
INTRODUCED BY Assembly Member Evans
Type:
Legislation
Status:
Signed into Law JULY 2, 2009
An act to amend Sections 12301.6, 12305.7, 12305.71, and 12305.82
of, and to add Sections 12301.15, 12301.22, 12301.24, 12301.25,
12305.73, 12305.85, and 12305.86 to, the Welfare and Institutions
Code, relating to in-home supportive services.
LEGISLATIVE COUNSEL'S DIGEST
AB 19, Evans. 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.
Existing law provides for the Medi-Cal program, administered by
the State Department of Health Care Services, under which health care
services are provided to qualified low-income persons. Under
existing law, IHSS recipients who are eligible for the Medi-Cal
program, are provided with personal care option services, as defined,
in lieu of receiving these services under the IHSS program.
Under existing law, the State Department of Social Services is
required, in consultation and coordination with county welfare
departments, to establish and implement statewide hourly task
guidelines and instructions to provide counties with a standard tool
for consistently and accurately assessing service needs and
authorizing service hours to meet those needs.
This bill would require the department, on or before December 31,
2011, in consultation with county welfare departments and
stakeholders, to develop and implement procedures to ensure that an
IHSS provider of services receives a list specifying the approved
duties to be performed for each recipient under the provider's care
and a complete list of supportive service tasks available under the
IHSS program. It would require an application for IHSS benefits to
contain a notice that providers will be provided with this
information. This bill would also require all prospective IHSS
providers to complete a prescribed provider orientation as a
condition of IHSS program participation.
This bill would require the standardized provider timesheet used
to track the work performed by providers of services under the IHSS
program to contain a certification to be signed by the provider and
recipient verifying that the information provided in the timesheet is
true and correct and a statement relating to the imposition of civil
penalties, as provided for in the bill, if the information is found
not to be true and correct. The bill would require the timesheet to
include designated spaces for the index fingerprint of the provider
and recipient, effective July 1, 2011.
Existing law, upon request of a recipient of in-home supportive
services, or a recipient of personal care services under the Medi-Cal
program, authorizes a public authority or nonprofit consortium to
provide a criminal background check on certain provider applicants,
pursuant to specified provisions.
Existing law contains provisions prohibiting a public authority or
nonprofit consortium from charging a provider, potential personnel,
or service recipient a fee to cover designated costs associated with
a criminal background check.
This bill would, instead, require that criminal background checks
be performed for prospective providers commencing on the effective
date of the bill, as a condition of IHSS enrollment and that they be
performed at the provider's expense. The bill would require a
criminal background check to be performed no later than July 1, 2010,
for a person already on a county's provider registry or already
providing services, but not on the registry, on the effective date of
the bill.
Under existing law, if a provider applicant is rejected as a
result of information contained in the criminal background report,
the applicant is required to be advised of his or her right to
request a copy of his or her own criminal history record and to
submit a challenge to the Department of Justice to contest the
criminal background report.
This bill would, instead, if the applicant or provider is rejected
as a result of information contained in the criminal background
report, require that he or she receive a copy of that report from the
Department of Justice, and that he or she be advised of his or her
right to contest the criminal background report. It would, in
addition, require the State Department of Social Services to develop
a written appeal process for a current and prospective provider who
is determined ineligible to receive IHSS payments.
The bill would also enact substantially similar criminal
background check requirements applicable to a county for applicants
or providers not on a provider registry of a nonprofit consortium or
public authority. By increasing county duties with respect to the
program, this bill would impose a state-mandated local program.
The bill would also require the department to develop protocols
and procedures for obtaining fingerprints from individuals eligible
for IHSS, as specified.
Existing law requires the department and the State Department of
Health Care Services to 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.
This bill would require a provider enrollment form to be completed
using the provider's physical residential address, and would
prohibit use of a post office box address. This bill would prohibit a
provider's paycheck from being mailed to a post office box unless
the county has approved a written or oral request from the provider,
as specified.
Existing law requires the State Department of Social Services, in
consultation with counties, to develop a standardized curriculum,
training materials, and work aids, and operate an ongoing, statewide
training program on the supportive services uniformity system, as
specified.
This bill would require the department, on or before July 1, 2010,
in consultation with the State Department of Health Care Services
and other designated parties, to ensure that a standardized
curriculum and training materials for county social workers are
developed for the purpose of preventing fraud within the IHSS
program.
This bill would require the State Department of Social Services to
develop protocols for the implementation of targeted program
integrity mailings, as described in the bill, and to distribute the
targeted program integrity mailings to providers.
By imposing additional duties on counties with respect to quality
assurance activities, including targeted program integrity mailings
and monitoring delivery of services, the bill would create a
state-mandated local program.
This bill would require the State Department of Social Services to
consult, as appropriate, with stakeholders on the implementation of
the timesheet and criminal background check provisions of the bill.
Existing law contains provisions relating to the duties of the
State Department of Health Care Services, the State Department of
Social Services, and the counties relating to IHSS fraud.
This bill would require the State Department of Social Services,
in consultation with specified parties, to develop uniform statewide
protocols for acceptable activities to be performed and acceptable
measures to be taken by the department, the State Department of
Health Care Services, and the counties, for purposes of IHSS fraud
prevention. It would also provide that the refusal of an IHSS
provider or recipient to comply with program requirements may result
in termination of program participation.
The bill would provide for the implementation of its provisions
through all-county letters or similar instructions, and would also
provide for the adoption of emergency regulations by July 1, 2010.
The California Constitution authorizes the Governor to declare a
fiscal emergency and to call the Legislature into special session for
that purpose. The Governor issued a proclamation declaring a fiscal
emergency, and calling a special session for this purpose, on July 1,
2009.
This bill would state that it addresses the fiscal emergency
declared by the Governor by proclamation issued on July 1, 2009,
pursuant to the California Constitution.
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 with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 12301.15 is added to the Welfare and
Institutions Code, to read:
12301.15. Effective January 1, 2010, the application for in-home
supportive services shall contain a notice to the recipient that his
or her provider or providers will be given written notice of the
recipient's authorized services and full number of services hours
allotted to the recipient. The application shall inform recipients of
the Medi-Cal toll-free telephone fraud hotline and Internet Web site
for reporting suspected fraud or abuse in the provision or receipt
of supportive services.
SEC. 2. Section 12301.22 is added to the Welfare and Institutions
Code, to read:
12301.22. On or before December 31, 2011, the department, in
consultation with county welfare departments and other stakeholders,
shall develop a process to ensure that a provider of services under
this article receives a list specifying the approved duties to be
performed for each recipient under the provider's care and a complete
list of supportive service tasks available under the IHSS program.
SEC. 3. Section 12301.24 is added to the Welfare and Institutions
Code, to read:
12301.24. (a) Effective November 1, 2009, all prospective
providers must complete a provider orientation at the time of
enrollment, as developed by the department, in consultation with
counties, which shall include, but is not limited to, all of the
following:
(1) The requirements to be an eligible IHSS provider.
(2) A description of the IHSS program.
(3) The rules, regulations, and provider-related processes and
procedures, including timesheets.
(4) The consequences of committing fraud in the IHSS program.
(5) The Medi-Cal toll-free telephone fraud hotline and Internet
Web site for reporting suspected fraud or abuse in the provision or
receipt of supportive services.
(b) In order to complete provider enrollment, at the conclusion of
the provider orientation, all applicants shall sign a statement
specifying that the provider agrees to all of the following:
(1) He or she will provide to a recipient the authorized services.
(2) He or she has received a demonstration of, and understands,
timesheet requirements, including content, signature, and
fingerprinting, when implemented.
(3) He or she shall cooperate with state or county staff to
provide any information necessary for assessment or evaluation of a
case.
(4) He or she understands and agrees to program expectations and
is aware of the measures that the state or county may take to enforce
program integrity.
(5) He or she has attended the provider orientation and
understands that failure to comply with program rules and
requirements may result in the provider being terminated from
providing services through the IHSS program.
(c) Between November 1, 2009, and June 30, 2010, all current
providers shall receive the information described in this section.
Following receipt of this information, a provider shall submit a
signed agreement, consistent with the requirements of this section,
to the appropriate county office.
(d) The county shall indefinitely retain this statement in the
provider's file. Refusal of the provider to sign the statement
described in subdivision (b) shall result in the provider being
ineligible to receive payment for the provision of services and
participate as a provider in the IHSS program.
SEC. 4. Section 12301.25 is added to the Welfare and Institutions
Code, to read:
12301.25. (a) Notwithstanding any other provision of law, the
standardized provider timesheet used to track the work performed by
providers of services under this article shall contain both of the
following:
(1) A certification to be signed by the provider and recipient,
verifying that the information provided in the timesheet is true and
correct.
(2) A statement that the provider or recipient may be subject to
civil penalties if the information provided is found not to be true
and correct.
(b) A person who is convicted of fraud, as defined in subdivision
(a) of Section 12305.8, resulting from intentional deception or
misrepresentation in the provision of timesheet information under
this section shall, in addition to any criminal penalties imposed, be
subject to a civil penalty of at least five hundred dollars ($500),
but not to exceed one thousand dollars ($1,000), for each violation.
(c) Effective July 1, 2011, the standardized provider timesheet
shall also contain designated spaces for the index fingerprint of the
provider and the recipient. The provider and the recipient shall
place their respective index fingerprint in the designated location
on the timesheet in order for the timesheet to be eligible for
payment. An individual who is a minor or who is physically unable to
provide an index fingerprint due to amputation or other physical
limitations shall be exempt from the requirement to provide an index
fingerprint under this section, and documentation of this exemption
shall be maintained in the recipient or provider file, as applicable.
SEC. 5. 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.
(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) 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) 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. 6. Section 12305.7 of the Welfare and Institutions Code is
amended to read:
12305.7. The department shall perform all of the following
activities:
(a) Beginning in the 2004-05 fiscal year, and in each subsequent
fiscal year, the department in consultation with the State Department
of Health Care Services and the county welfare departments shall
design and conduct an error rate study to estimate the extent of
payment and service authorization errors and fraud in the provision
of supportive services. The error rate study findings shall be used
to prioritize and direct state and county fraud detection and quality
improvement efforts. The State Department of Health Care Services
shall provide technical assistance and guidance for the error rate
studies as requested by the department.
(b) (1) The department and the State Department of Health Care
Services shall conduct automated data matches to compare Medi-Cal
paid claims and third-party liability data with supportive services
paid service hours data to identify potential overpayments, duplicate
payments, alternative payment sources for supportive services, and
other potential supportive services delivery discrepancies, including
but not limited to, receipt of supportive services by a recipient on
the same day that other potentially duplicative Medi-Cal services
are received. Relevant data match findings shall be transmitted to
the counties, or to the appropriate state entity, for action.
(2) The department, in consultation with the county welfare
departments and the State Department of Health Care Services, shall
determine, define, and issue instructions to the counties describing
the roles and responsibilities of the department, the State
Department of Health Care Services, and counties for resolving data
match discrepancies requiring followup, defining the necessary
actions that will be taken to resolve them, and the process for
exchange of information pertaining to the findings and disposition of
data match discrepancies.
(c) The department shall develop methods for verifying the receipt
of supportive services by program recipients. In developing the
specified methods the department shall obtain input from program
stakeholders as provided in Section 12305.72. The department shall,
in consultation with the county welfare departments, also determine,
define, and issue instructions describing the roles and
responsibilities of the department and the county welfare departments
for evaluating and responding to identified problems and
discrepancies.
(d) The department shall make available on its Internet Web site
the regulations, all-county letters, approved forms, and training
curricula developed and officially issued by the department to
implement the items described in Section 12305.72. The department
shall inform supportive services providers, recipients, and the
general public about the availability of these items and of the
Medi-Cal toll free fraud hotline and Web site for reporting suspected
fraud or abuse in the provision or receipt of supportive services.
(e) (1) The department, in consultation with counties and in
accordance with Section 12305.72, shall develop a standardized
curriculum, training materials, and work aids, and operate an
ongoing, statewide training program on the supportive services
uniformity system for county workers, managers, quality assurance
staff, state hearing officers, and public authority or nonprofit
consortium staff, to the extent a county operates a public authority
or nonprofit consortium. The training shall be expanded to include
variable assessment intervals, statewide hourly task guidelines, and
use of the protective supervision
medical certification form as the development of each of these
components is completed. Training shall be scheduled and provided at
sites throughout the state. The department may obtain a qualified
vendor to assist in the development of the training and to conduct
the training program. The design of the training program shall
provide reasonable flexibility to allow counties to use their
preferred training modalities to educate their supportive services
staff in this subject matter.
(2) On or before July 1, 2010, the department, in consultation
with the State Department of Health Care Services, counties, and
other stakeholders, as appropriate, shall ensure that a standardized
curriculum and training materials for county social workers are
developed for the purpose of preventing fraud within the program.
(f) The department shall, in conjunction with the counties,
develop protocols and procedures for monitoring county quality
assurance programs. The monitoring may include onsite reviews of
county quality assurance activities. The focus of the established
monitoring protocols and procedures shall include determining the
extent to which counties are fulfilling their quality assurance
responsibilities and county quality assurance staff are correctly
applying the uniformity system in reviewing supportive services cases
for consistent, appropriate, and accurate service need assessments.
The department and the county welfare departments shall also develop
the protocols and procedures under which the department will report
its monitoring findings to a county, disagreements over the findings
are resolved, to the extent possible, and the county, the State
Department of Health Care Services, and the department will follow up
on the findings.
(g) The department shall conduct a review of program regulations
in effect on the date of enactment of this section and shall revise
the regulations as necessary to conform to the statutory changes that
have occurred since the regulations were initially promulgated and
to conform to federally authorized program changes.
(h) The department, in consultation with the county welfare
departments and other stakeholders, as appropriate, shall develop
protocols for the implementation of targeted mailings to providers,
to convey program integrity concerns.
SEC. 7. Section 12305.71 of the Welfare and Institutions Code is
amended to read:
12305.71. Counties shall perform the following quality assurance
activities:
(a) Establish a dedicated, specialized unit or function to ensure
quality assurance and program integrity, including fraud detection
and prevention, in the provision of supportive services.
(b) Perform routine, scheduled reviews of supportive services
cases, to ensure that caseworkers appropriately apply the supportive
services uniformity system and other supportive services rules and
policies for assessing recipients' need for services to the end that
there are accurate assessments of needs and hours. Counties may
consult with state quality assurance staff for technical assistance
and shall cooperate with state monitoring of the county's quality
assurance activities and findings.
(c) The department and the county welfare departments shall
develop policies, procedures, implementation timelines, and
instructions under which county quality assurance programs will
perform the following activities:
(1) Receiving, resolving, and responding appropriately to claims
data match discrepancies or other state level quality assurance and
program integrity information that indicates potential overpayments
to providers or recipients or third-party liability for supportive
services.
(2) Implementing procedures to identify potential sources of
third-party liability for supportive services.
(3) Monitoring the delivery of supportive services in the county
to detect and prevent potential fraud by providers, recipients, and
others and maximize the recovery of overpayments from providers or
recipients.
(A) As appropriate, in targeted cases, to protect program
integrity, this monitoring may include a visit to the recipient's
home to verify the receipt of services.
(B) The exact date and time of a home visit shall not be announced
to the supportive services recipient or provider.
(C) The department, in consultation with the county welfare
departments, shall develop protocols for followup home visits and
other actions, if the provider and recipient are not at the recipient'
s home at the time of the initial home visit. The protocols shall
include, at a minimum, all of the following:
(i) Information sent to the recipient's home regarding the goals
of the home visit, including the county's objective to maintain
program integrity by verifying the receipt of services, the quality
of services and consumer well-being, and the potential loss of
services if fraud is substantiated.
(ii) Additional attempted visits to the recipient's home, pursuant
to subparagraph (A).
(iii) Followup phone calls to both the recipient and the provider,
if necessary.
(4) Informing supportive services providers and recipients, and
the public that suspected fraud in the provision or receipt of
supportive services can be reported by using the toll-free Medi-Cal
fraud telephone hotline and Internet Web site.
(5) In accordance with protocols developed pursuant to subdivision
(h) of Section 12305.7, distribute targeted program integrity
mailings to providers. The purpose of the targeted program integrity
mailings is to inform providers of appropriate program rules and
requirements and consequences for failure to adhere to them.
(d) Develop a schedule, beginning July 1, 2005, under which county
quality assurance staff shall periodically perform targeted quality
assurance studies.
(e) In accordance with protocols developed by the department and
county welfare departments, conduct joint case review activities with
state quality assurance staff, including random postpayment paid
claim reviews to ensure that payments to providers were valid and
were associated with existing program recipients; identify, refer to,
and work with appropriate agencies in investigation, administrative
action, or prosecution of instances of fraud in the provision of
supportive services. The protocols shall consider the relative
priorities of the activities required pursuant to this section and
available resources.
SEC. 8. Section 12305.73 is added to the Welfare and Institutions
Code, to read:
12305.73. (a) The department, in consultation with the county
welfare departments, shall develop protocols and procedures for
obtaining fingerprint images of all individuals who are being
assessed or reassessed to receive supportive services under this
chapter.
(b) (1) For any recipient whose initial client assessment occurs
on or after April 1, 2010, he or she shall be fingerprinted at the
same time of initial assessment by a social worker, in the recipient'
s home, as specified in the protocols and procedures developed by
this section.
(2) For any recipient already receiving in-home supportive
services on April 1, 2010, during the recipient's next reassessment,
a social worker shall obtain fingerprint images for that recipient,
in the recipient's home, pursuant to this section.
(c) Fingerprint imaging information obtained from a recipient
pursuant to this section shall remain confidential, and shall only be
used for identification purposes directly connected with the
provision of supportive services to that recipient and program
integrity.
(d) An individual who is a minor or who is physically unable to
provide fingerprints due to amputation or other physical limitations
shall be exempt from any requirement to provide fingerprints under
this section.
(e) Upon completion of the development of protocols and procedures
pursuant to subdivision (a), the department shall be authorized to
take the necessary steps to implement this section by April 1, 2010.
SEC. 9. Section 12305.82 of the Welfare and Institutions Code is
amended to read:
12305.82. (a) In addition to its existing authority under the
Medi-Cal program, the State Department of Health Care Services shall
have the authority to investigate fraud in the provision or receipt
of in-home supportive services. Counties shall also have the
authority to investigate fraud in the provision or receipt of in-home
supportive services pursuant to the protocols developed in
subdivision (b). The department, the State Department of Health Care
Services, and counties, including county quality assurance staff,
shall work together as appropriate to coordinate activities to detect
and prevent fraud by in-home supportive services providers and
recipients in accordance with federal and state laws and regulations,
including applicable due process requirements, to take appropriate
administrative action relating to suspected fraud in the provision or
receipt of in-home supportive services, and to refer suspected
criminal offenses to appropriate law enforcement agencies for
prosecution.
(b) (1) The department, in consultation with county welfare
directors and other stakeholders, as appropriate, shall develop
uniform statewide protocols for acceptable activities to be performed
and acceptable measures to be taken by the department, the State
Department of Health Care Services, and the counties for purposes of
fraud prevention.
(2) The State Department of Health Care Services, the department,
and the county may share data with each other as necessary to prevent
fraud and investigate suspected fraud pursuant to this section. The
information shall only be used for purposes of preventing and
investigating suspected fraud in the In-Home Supportive Services
program, and shall otherwise remain confidential.
(c) If the State Department of Health Care Services concludes that
there is reliable evidence that a provider or recipient of
supportive services has engaged in fraud in connection with the
provision or receipt of in-home supportive services, the State
Department of Health Care Services shall notify the department, the
county, and the county's public authority or nonprofit consortium, if
any, of that conclusion.
(d) If a county concludes that there is reliable evidence that a
supportive services provider or recipient has engaged in fraud in
connection with the provision or receipt of in-home supportive
services, the county shall notify the department and the State
Department of Health Care Services of that conclusion.
(e) Notwithstanding any other provision of law, a county may
investigate suspected fraud in connection with the provision or
receipt of supportive services, with respect to an overpayment of
five hundred dollars ($500) or less.
(f) The failure of a provider or a recipient to comply with
program requirements may result in termination of his or her
participation in the In-Home Supportive Services program, subject to
all applicable federal and state due process requirements.
SEC. 10. Section 12305.85 is added to the Welfare and Institutions
Code, to read:
12305.85. (a) A provider enrollment form shall be completed using
the provider's physical residential address, and shall not be
completed using a post office box address.
(b) A paycheck for a provider shall not be mailed to a post office
box unless the county approves a written or oral request from the
provider, which shall include an explanation of the circumstances
that make the use of a post office box appropriate or necessary. The
county shall document an oral request received pursuant to this
subdivision the provider's request and the county's approval or
disapproval shall be retained in the provider's file.
SEC. 11. Section 12305.86 is added to the Welfare and Institutions
Code, 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.
(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. 12. Upon completion of the 2009-10 budget process, the State
Department of Social Services shall consult, as appropriate, with
stakeholders on the implementation of Section 12301.6 of the Welfare
and Institutions Code, as amended by this act, and Sections 12301.25,
12305.85, and 12305.86 of the Welfare and Institutions Code, as
added by this act. Stakeholders shall include, but not be limited to,
the County Welfare Directors Association, legislative staff, and
stakeholders representing In-Home Supportive Services program
recipients and providers.
SEC. 13. (a) 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 State Department of Social Services may implement and administer
this act through all-county letters or similar instruction from the
department until regulations are adopted. The department shall adopt
emergency regulations implementing this section no later than July 1,
2010. The department may readopt any emergency regulation authorized
by this act that is the same as, or substantially equivalent to, an
emergency regulation previously adopted under this act.
(b) The initial adoption of emergency regulations implementing
this act 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 and approval
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.
(c) The department shall consult with stakeholders in the
formulation and drafting processes of the all-county letters and
regulations required under this section prior to their finalization
and release.
SEC. 14. This act addresses the fiscal emergency declared by the
Governor by proclamation on July 1, 2009, pursuant to subdivision (f)
of Section 10 of Article IV of the California Constitution.
SEC. 15. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution for
certain costs that may be incurred by a local agency or school
district because, in that regard, this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
However, if the Commission on State Mandates determines that this
act contains other 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.
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Signed By:
Arnold Schwarzenegger