WELFARE AND INSTITUTIONS CODE
SECTION 12300-12317.2
12300. (a) The purpose of this article is to provide in every
county in a manner consistent with this chapter and the annual Budget
Act those supportive services identified in this section to aged,
blind, or disabled persons, as defined under this chapter, who are
unable to perform the services themselves and who cannot safely
remain in their homes or abodes of their own choosing unless these
services are provided.
(b) Supportive services shall include domestic services and
services related to domestic services, heavy cleaning, personal care
services, accompaniment by a provider when needed during necessary
travel to health-related appointments or to alternative resource
sites, yard hazard abatement, protective supervision, teaching and
demonstration directed at reducing the need for other supportive
services, and paramedical services which make it possible for the
recipient to establish and maintain an independent living
arrangement.
(c) Personal care services shall mean all of the following:
(1) Assistance with ambulation.
(2) Bathing, oral hygiene, and grooming.
(3) Dressing.
(4) Care and assistance with prosthetic devices.
(5) Bowel, bladder, and menstrual care.
(6) Repositioning, skin care, range of motion exercises, and
transfers.
(7) Feeding and assurance of adequate fluid intake.
(8) Respiration.
(9) Assistance with self-administration of medications.
(d) Personal care services are available if these services are
provided in the beneficiary's home and other locations as may be
authorized by the director. Among the locations that may be
authorized by the director under this paragraph is the recipient's
place of employment if all of the following conditions are met:
(1) The personal care services are limited to those that are
currently authorized for a recipient in the recipient's home and
those services are to be utilized by the recipient at the recipient's
place of employment to enable the recipient to obtain, retain, or
return to work. Authorized services utilized by the recipient at the
recipient's place of employment shall be services that are relevant
and necessary in supporting and maintaining employment. However,
workplace services shall not be used to supplant any reasonable
accommodations required of an employer by the Americans with
Disabilities Act (42 U.S.C. Sec. 12101 et seq.; ADA) or other legal
entitlements or third-party obligations.
(2) The provision of personal care services at the recipient's
place of employment shall be authorized only to the extent that the
total hours utilized at the workplace are within the total personal
care services hours authorized for the recipient in the home.
Additional personal care services hours may not be authorized in
connection with a recipient's employment.
(e) Where supportive services are provided by a person having the
legal duty pursuant to the Family Code to provide for the care of his
or her child who is the recipient, the provider of supportive
services shall receive remuneration for the services only when the
provider leaves full-time employment or is prevented from obtaining
full-time employment because no other suitable provider is available
and where the inability of the provider to provide supportive
services may result in inappropriate placement or inadequate care.
These providers shall be paid only for the following:
(1) Services related to domestic services.
(2) Personal care services.
(3) Accompaniment by a provider when needed during necessary
travel to health-related appointments or to alternative resource
sites.
(4) Protective supervision only as needed because of the
functional limitations of the child.
(5) Paramedical services.
(f) To encourage maximum voluntary services, so as to reduce
governmental costs, respite care shall also be provided. Respite care
is temporary or periodic service for eligible recipients to relieve
persons who are providing care without compensation.
(g) A person who is eligible to receive a service or services
under an approved federal waiver authorized pursuant to Section
14132.951, or a person who is eligible to receive a service or
services authorized pursuant to Section 14132.95, shall not be
eligible to receive the same service or services pursuant to this
article. In the event that the waiver authorized pursuant to Section
14132.951, as approved by the federal government, does not extend
eligibility to all persons otherwise eligible for services under this
article, or does not cover a service or particular services, or does
not cover the scope of a service that a person would otherwise be
eligible to receive under this article, those persons who are not
eligible for services, or for a particular service under the waiver
or Section 14132.95 shall be eligible for services under this
article.
(h) (1) All services provided pursuant to this article shall be
equal in amount, scope, and duration to the same services provided
pursuant to Section 14132.95, including any adjustments that may be
made to those services pursuant to subdivision (e) of Section
14132.95.
(2) Notwithstanding any other provision of this article, the rate
of reimbursement for in-home supportive services provided through any
mode of service shall not exceed the rate of reimbursement
established under subdivision (j) of Section 14132.95 for the same
mode of service unless otherwise provided in the annual Budget Act.
(3) The maximum number of hours available under Section 14132.95,
Section 14132.951, and this section, combined, shall be 283 hours per
month. Any recipient of services under this article shall receive no
more than the applicable maximum specified in Section 12303.4.
12300.1. As used in Section 12300 and in this article, "supportive
services" include those necessary paramedical services that are
ordered by a licensed health care professional who is lawfully
authorized to do so, which persons could provide for themselves but
for their functional limitations. Paramedical services include the
administration of medications, puncturing the skin or inserting a
medical device into a body orifice, activities requiring sterile
procedures, or other activities requiring judgment based on training
given by a licensed health care professional. These necessary
services shall be rendered by a provider under the direction of a
licensed health care professional, subject to the informed consent of
the recipient obtained as a part of the order for service. Any and
all references to Section 12300 in any statute heretofore or
hereafter enacted shall be deemed to be references to this section.
All statutory references to the supportive services specified in
Section 12300 shall be deemed to include paramedical services.
12300.2. In any in-home supportive services action concerning the
amount of in-home supportive services to be provided, the department
shall send a notice of the action to each recipient. The recipient
shall also receive a description of each specific task authorized and
the number of hours allotted. In the case of reassessment, the
recipient shall receive an identification of hours for tasks
increased or reduced and the difference from previous hours
authorized.
12301. (a) The intent of the Legislature in enacting this article
is to provide supplemental or additional services to the social and
rehabilitative services in Article 6 (commencing with Section 12250)
of this chapter. The Legislature further intends that necessary
in-home supportive services shall be provided in a uniform manner in
every county based on individual need consistent with this chapter
and, for the 1992-93 fiscal year the appropriation provided for those
services in the Budget Act, in the absence of alternative in-home
supportive services provided by an able and willing individual or
local agency at no cost to the recipient, except as required under
Section 12304.5. An able spouse who is available to assist the
recipient shall be deemed willing to provide at no cost any services
under this article except nonmedical personal services and
paramedical services. When a spouse leaves full-time employment or is
prevented from obtaining full-time employment because no other
suitable provider is available and where the inability of the
provider to provide supportive services may result in inappropriate
placement or inadequate care, the spouse shall also be paid for
accompaniment when needed during necessary travel to health-related
appointments and protective supervision.
(b) Each county shall be notified of its allocation and projected
caseload by July 31 of each fiscal year, or 30 days after the
enactment of the Budget Act, whichever occurs later.
(c) This section shall remain operative until July 1, 1993, and on
and after that date, shall remain inoperative until July 1, 1994, at
which date, this section shall become operative.
12301.03. (a) Notwithstanding any other provision of law, effective
October 1, 1992, and for the remainder of the 1992-93 fiscal year,
unless additional funds become available earlier for IHSS from the
personal care option, the department shall implement a 12 percent
reduction in hours of service to each recipient of services under
this article. For those recipients who have a documented unmet need
because of the limitations contained in Section 12303.4, this
reduction shall be applied first to the unmet need before being
applied to the hours to be authorized. If the recipient believes he
or she will be at serious risk of out-of-home placement as a
consequence of the reduction, the recipient may apply for a
restoration of reduction pursuant to Section 12301.05.
(b) It is the intent of the Legislature to encourage counties, to
the extent possible, to achieve reductions in a manner that least
disrupts the continuity of services to recipients. Counties are
further encouraged, to the extent possible, to assist recipients in
locating supplemental services, such as congregate or home-delivered
meals, and to assist providers in obtaining additional hours of
employment to mitigate the impact of reductions upon them.
(c) Notice of the reduction required by subdivision (a) shall be
provided to each recipient and shall include the following
information:
(1) The amount of hours the recipient received prior to the
reduction and the amount of hours the recipient is to receive as a
result of the reduction.
(2) The reason for the reduction.
(3) A statement that the reduction shall be effective through June
30, 1993, unless additional funds become available earlier for IHSS
as a result of provision of Personal Care services.
(4) How all or part of the reduction may be restored as set forth
in Section 12301.05 if the recipient believes he or she will be at
serious risk of out-of-home placement as a consequence of the
reduction.
(d) Notice of the reduction shall be provided to providers as
expeditiously as possible by the Controller, in consultation with the
department.
(e) Notwithstanding Section 11004, in any proceeding pursuant to
Section 10950 where it has been determined that the sole issue was
the reduction required by this section, any aid paid pending the
hearing shall be recoverable as an overpayment.
12301.05. Any aged, blind, or disabled individual who is eligible
for services under this chapter who has had his or her services
reduced under subdivision (a) of Section 12301.03 but who believes he
or she is at serious risk of out-of-home placement unless all or
part of the reduction is restored may apply for an IHSS care
supplement. Where there is such an application within 10 days of
receiving the reduction notice or prior to the implementation of the
reduction, the IHSS shall continue until the county finds that the
recipient does or does not require restoration of any hours through
the IHSS care supplement. If the recipient disagrees with the county'
s determination concerning the need for the IHSS care supplement, the
recipient may request a hearing on that determination. However,
there will be no aid paid pending in that case.
(b) For purposes of subdivision (a), an individual is in serious
risk of out-of-home placement only if (1) the individual meets the
criteria for long-term care services as set forth in the Manual of
Criteria for Medi-Cal Authorization published by the State Department
of Health Services (January 1, 1982, last amended September, 1991),
or (2) the individual cannot summon emergency assistance.
(c) The county shall give a high priority to prompt screening of
these persons to determine their need for IHSS Care Supplement.
12301.06. (a) (1) Notwithstanding any other provision of law,
except as provided in subdivision (d), the department shall implement
a 3.6-percent reduction in hours of service to each recipient of
services under this article which shall be applied to the recipient's
hours as authorized pursuant to the most recent assessment. This
reduction shall be effective 90 days after the enactment of the act
that adds this section. The reduction required by this section shall
not preclude any reassessment to which a recipient would otherwise be
entitled. However, hours authorized pursuant to a reassessment shall
be subject to the 3.6-percent reduction required by this section.
(2) A recipient of services under this article may direct the
manner in which the reduction of hours is applied to the recipient's
previously authorized services.
(3) For those individuals who have a documented unmet need
excluding protective supervision because of the limitations on
authorized hours under Section 12303.4, the reduction shall be taken
first from the documented unmet need.
(b) (1) The reduction in hours of service pursuant to subdivision
(a) shall cease to be implemented on July 1, 2012.
(2) It is the intent of the Legislature that on July 1, 2012,
services shall be restored to the level authorized pursuant to the
recipient's most recent assessment, and increased by the previously
deducted 3.6 percent.
(c) The notice of action informing the recipient of the reduction
pursuant to subdivision (a) shall be mailed at least 30 days prior to
the reduction going into effect. The notice of action shall be
understandable to the recipient and translated into all languages
spoken by a substantial number of the public served by the In-Home
Supportive Services program, in accordance with Section 7295.2 of the
Government Code. The notice shall not contain any recipient
financial or confidential identifying information other than the
recipient's name, address, and Case Management Information and
Payroll System (CMIPS) client identification number, and shall
include, but not be limited to, all of the following information:
(1) The aggregate number of authorized hours before the reduction
pursuant to subdivision (a) and the aggregate number of authorized
hours after the reduction.
(2) That the recipient may direct the manner in which the
reduction of authorized hours is applied to the recipient's
previously authorized services.
(3) That the reduction of hours shall remain in effect until July
1, 2012, at which time service hours shall be restored to the
recipient's authorized level, based on the most recent assessment,
and increased by the previously deducted 3.6 percent.
(d) A recipient shall have all appeal rights otherwise provided
for under Chapter 7 (commencing with Section 10950) of Part 2.
(e) (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.
(f) This section shall become inoperative on July 1, 2012, and, as
of January 1, 2013, this section is repealed, unless a later enacted
statute that is enacted before January 1, 2013, deletes or extends
the dates on which it becomes inoperative and is repealed.
12301.1. (a) The department shall adopt regulations establishing a
uniform range of services available to all eligible recipients based
upon individual needs. The availability of services under these
regulations is subject to the provisions of Section 12301 and county
plans developed pursuant to Section 12302.
(b) The county welfare department shall assess each recipient's
continuing need for supportive services at varying intervals as
necessary, but at least once every 12 months.
(c) (1) Notwithstanding subdivision (b), at the county's option,
assessments may be extended, on a case-by-case basis, for up to six
months beyond the regular 12-month period, provided that the county
documents that all of the following conditions exist:
(A) The recipient has had at least one reassessment since the
initial program intake assessment.
(B) The recipient's living arrangement has not changed since the
last annual reassessment and the recipient lives with others, or has
regular meaningful contact with persons other than his or her service
provider.
(C) The recipient or, if the recipient is a minor, his or her
parent or legal guardian, or if incompetent, his or her conservator,
is able to satisfactorily direct the recipient's care.
(D) There has been no known change in the recipient's supportive
service needs within the previous 24 months.
(E) No reports have been made to, and there has been no
involvement of, an adult protective services agency or agencies since
the county last assessed the recipient.
(F) The recipient has not had a change in provider or providers
for at least six months.
(G) The recipient has not reported a change in his or her need for
supportive services that requires a reassessment.
(H) The recipient has not been hospitalized within the last three
months.
(2) If some, but not all, of the conditions specified in paragraph
(1) of subdivision (c) are met, the county may consider other
factors in determining whether an extended assessment interval is
appropriate, including, but not limited to, involvement in the
recipient's care of a social worker, case manager, or other similar
representative from another human services agency, such as a regional
center or county mental health program, or communications, or other
instructions from a physician or other licensed health care
professional that the recipient's medical condition is unlikely to
change.
(3) A county may reassess a recipient's need for services at a
time interval of less than 12 months from a recipient's initial
intake or last assessment if the county social worker has information
indicating that the recipient's need for services is expected to
decrease in less than 12 months.
(d) A county shall assess a recipient's need for supportive
services any time that the recipient notifies the county of a need to
adjust the supportive services hours authorized, or when there are
other indications or expectations of a change in circumstances
affecting the recipient's need for supportive services.
(e) (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,
until emergency regulations are filed with the Secretary of State,
the department may implement this section through all-county letters
or similar instructions from the director. The department shall adopt
emergency regulations implementing this section no later than
September 30, 2005, unless notification of a delay is made to the
Chair of the Joint Legislative Budget Committee prior to that date.
The notification shall include the reason for the delay, the current
status of the emergency regulations, a date by which the emergency
regulations shall be adopted, and a statement of need to continue use
of all-county letters or similar instructions. Under no
circumstances shall the adoption of emergency regulations be delayed,
or the use of all-county letters or similar instructions be
extended, beyond June 30, 2006.
(2) The adoption of regulations implementing this section shall be
deemed an emergency and necessary for the immediate preservation of
the public peace, health, safety, or general welfare. The emergency
regulations authorized by this section shall be exempt from review by
the Office of Administrative Law. The emergency regulations
authorized by this section shall be submitted to the Office of
Administrative Law for filing with the Secretary of State and shall
remain in effect for no more than 180 days by which time final
regulations shall be adopted. The department shall seek input from
the entities listed in Section 12305.72 when developing all-county
letters or similar instructions and the regulations.
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.
12301.2. (a) (1) The department, in consultation and coordination
with county welfare departments and in accordance with Section
12305.72, shall 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.
(2) The guidelines shall specify a range of time normally required
for each supportive service task necessary to ensure the health,
safety, and independence of the recipient. The guidelines shall also
provide criteria to assist county workers to determine when an
individual's service need falls outside the range of time provided in
the guidelines.
(3) In establishing the guidelines the department shall consider,
among other factors, adherence to universal precautions, existing
utilization patterns and outcomes associated with different levels of
utilization, and the need to avoid cost shifting to other government
program services. During the development of the guidelines the
department may seek advice from health professionals such as public
health nurses or physical or occupational therapists.
(b) A county shall use the statewide hourly task guidelines when
conducting an individual assessment or reassessment of an individual'
s need for supportive services.
(c) Subject to the limits imposed by Section 12303.4, counties
shall approve an amount of time different from the guideline amount
whenever the individual assessment indicates that the recipient's
needs require an amount of time that is outside the range provided
for in the guidelines. Whenever task times outside the range provided
in the guidelines are authorized the county shall document the need
for the authorized service level.
(d) The department shall adopt regulations to implement this
section by June 30, 2006. The department shall seek input from the
entities listed in Section 12305.72 when developing the regulations.
12301.21. (a) The department shall, in consultation and
coordination with the county welfare departments and in accordance
with Section 12305.72, develop for statewide use a standard form on
which to obtain certification by a physician or other appropriate
medical professional as determined by the department of a person's
need for protective supervision.
(b) At the time of an initial assessment at which a recipient's
potential need for protective supervision has been identified, the
county shall request that a person requesting protective supervision
submit the certification to the county. The county shall use the
certification in conjunction with other pertinent information to
assess the person's need for protective supervision. The
certification submitted by the person shall be considered as one
indicator of the need for protective supervision, but shall not be
determinative. In the event that the person fails to submit the
certification, the county shall make its determination of need based
upon other available evidence.
(c) At the time of reassessment of a person receiving authorized
protective supervision, the county shall determine the need to obtain
a new certification. The county may request another certification
from a recipient if determined necessary. The county shall document
the basis for its determination in the recipient's case file.
(d) (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,
until emergency regulations are filed with the Secretary of State,
the department may implement this section through all-county letters
or similar instructions from the director. The department shall adopt
emergency regulations implementing this chapter no later than
September 30, 2005, unless notification of a delay is made to the
Chair of the Joint Legislative Budget Committee prior to that date.
The notification shall include the reason for the delay, the current
status of the emergency regulations, a date by which the emergency
regulations shall be adopted, and a statement of need to continue use
of all-county letters or similar instructions. Under no
circumstances shall the adoption of emergency regulations be delayed,
or the use of all-county letters or similar instructions be
extended, beyond June 30, 2006.
(2) The adoption of regulations implementing this section shall be
deemed an emergency and necessary for the immediate preservation of
the public peace, health, safety, or general welfare. The emergency
regulations authorized by this section shall be exempt from review by
the Office of Administrative Law. The emergency regulations
authorized by this section shall be submitted to the Office of
Administrative Law for filing with the Secretary of State and shall
remain in effect for no more than 180 days by which time final
regulations shall be promulgated. The department shall seek input
from the entities listed in Section 12305.72 when developing
all-county letters or similar instructions and the regulations.
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.
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.
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.
12301.3. (a) Each county shall appoint an in-home supportive
services advisory committee that shall be comprised of not more than
11 individuals. No less 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 as recipients of services under this article.
(1) (A) In counties with fewer than 500 recipients of services
provided pursuant to this article or Section 14132.95, at least one
member of the advisory committee shall be a current or former
provider of in-home supportive services.
(B) In counties with 500 or more recipients of services provided
pursuant to this article or Section 14132.95, at least two members of
the advisory committee shall be a current or former provider of
in-home supportive services.
(2) Individuals who represent organizations that advocate for
people with disabilities or seniors may be appointed to committees
under this section.
(3) Individuals from community-based organizations that advocate
on behalf of home care employees may be appointed to committees under
this section.
(4) A county board of supervisors shall not appoint more than one
county employee as a member of the advisory committee, but may
designate any county employee to provide ongoing advice and support
to the advisory committee.
(b) Prior to the appointment of members to a committee required by
subdivision (a), the county board of supervisors shall solicit
recommendations for qualified members through a fair and open process
that includes the provision of reasonable written notice to, and
reasonable response time by, members of the general public and
interested persons and organizations.
(c) The advisory committee shall submit recommendations to the
county board of supervisors on the preferred mode or modes of service
to be utilized in the county for in-home supportive services.
(d) Any county that has established a governing body, as provided
in subdivision (b) of Section 12301.6, prior to July 1, 2000, shall
not be required to comply with the composition requirements of
subdivision (a) and shall be deemed to be in compliance with this
section.
12301.4. (a) Each advisory committee established pursuant to
Section 12301.3 or 12301.6 shall provide ongoing advice and
recommendations regarding in-home supportive services to the county
board of supervisors, any administrative body in the county that is
related to the delivery and administration of in-home supportive
services, and the governing body and administrative agency of the
public authority, nonprofit consortium, contractor, and public
employees.
(b) Each county shall be eligible to receive state reimbursements
of administrative costs for only one advisory committee and shall
comply with the requirements of subdivision (e) of Section 12302.25.
12301.5. The department may secure to the extent feasible such
in-home supportive and other health services for persons eligible
under this article to which they are entitled under the Medi-Cal Act
(Chapter 7 (commencing with Section 14000) of this part).
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.
(iii) Commencing 90 days after the effective date of the act that
adds Section 12305.87, and upon notice from the Department of
Justice that an applicant who is subject to the provisions of that
section has been convicted of, or incarcerated following conviction
for, an offense described in subdivision (b) of that section, the
public authority or nonprofit consortium shall deny the applicant's
request to become a provider of supportive services to any recipient
of in-home supportive services, subject to the individual waiver and
exception processes described in that section. An applicant who is
denied on the basis of Section 12305.87 shall be informed by the
public authority or nonprofit consortium of the individual waiver and
exception processes described in that section.
(B) (i) 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.
(F) A nonprofit consortium or a public authority authorized to
secure a criminal background check clearance pursuant to this section
shall accept a clearance for an applicant described in clause (i) of
subparagraph (A) who has been deemed eligible by another nonprofit
consortium, public authority, or county with criminal background
check authority pursuant to either Section 12305.86 or this section,
to receive payment for providing services pursuant to this article.
Existence of a clearance shall be determined by verification through
the case management, information, and payrolling system, that another
county, nonprofit consortium, or public authority with criminal
background check authority pursuant to Section 12305.86 or this
section has deemed the current or prospective provider to be eligible
to receive payment for providing services pursuant to this article.
(3) Establishment of a referral system under which in-home
supportive services personnel shall be referred to recipients.
(4) Providing for training for providers and recipients.
(5) (A) Performing any other functions related to the delivery of
in-home supportive services.
(B) (i) Upon request of a recipient of in-home supportive services
pursuant to this chapter, or a recipient of personal care services
under the Medi-Cal program pursuant to Section 14132.95, a public
authority or nonprofit consortium may provide a criminal background
check on a nonregistry applicant or provider from the Department of
Justice, in accordance with clause (i) of subparagraph (A) of
paragraph (2) of subdivision (e). If the person who is the subject of
the criminal background check is not hired or is terminated because
of the information contained in the criminal background report, the
provisions of subparagraph (B) of paragraph (2) of subdivision (e)
shall apply.
(ii) A recipient of in-home supportive services pursuant to this
chapter or a recipient of personal care services under the Medi-Cal
program may elect to employ an individual as their service provider
notwithstanding the individual's record of previous criminal
convictions, unless those convictions include any of the offenses
specified in Section 12305.81.
(6) Ensuring that the requirements of the personal care option
pursuant to Subchapter 19 (commencing with Section 1396) of Chapter 7
of Title 42 of the United States Code are met.
(f) (1) Any nonprofit consortium contracting with a county
pursuant to this section or any public authority created pursuant to
this section shall be deemed not to be the employer of in-home
supportive services personnel referred to recipients under this
section for purposes of liability due to the negligence or
intentional torts of the in-home supportive services personnel.
(2) In no case shall a nonprofit consortium contracting with a
county pursuant to this section or any public authority created
pursuant to this section be held liable for action or omission of any
in-home supportive services personnel whom the nonprofit consortium
or public authority did not list on its registry or otherwise refer
to a recipient.
(3) Counties and the state shall be immune from any liability
resulting from their implementation of this section in the
administration of the In-Home Supportive Services program. Any
obligation of the public authority or consortium pursuant to this
section, whether statutory, contractual, or otherwise, shall be the
obligation solely of the public authority or nonprofit consortium,
and shall not be the obligation of the county or state.
(g) Any nonprofit consortium contracting with a county pursuant to
this section shall ensure that it has a governing body that complies
with the requirements of subparagraph (B) of paragraph (3) of
subdivision (b) or an advisory committee that complies with
subparagraphs (B) and (C) of paragraph (3) of subdivision (b).
(h) Recipients of services under this section may elect to receive
services from in-home supportive services personnel who are not
referred to them by the public authority or nonprofit consortium.
Those personnel shall be referred to the public authority or
nonprofit consortium for the purposes of wages, benefits, and other
terms and conditions of employment.
(i) (1) Nothing in this section shall be construed to affect the
state's responsibility with respect to the state payroll system,
unemployment insurance, or workers' compensation and other provisions
of Section 12302.2 for providers of in-home supportive services.
(2) The Controller shall make any deductions from the wages of
in-home supportive services personnel, who are employees of a public
authority pursuant to paragraph (1) of subdivision (c), that are
agreed to by that public authority in collective bargaining with the
designated representative of the in-home supportive services
personnel pursuant to Chapter 10 (commencing with Section 3500) of
Division 4 of Title 1 of the Government Code and transfer the
deducted funds as directed in that agreement.
(3) Any county that elects to provide in-home supportive services
pursuant to this section shall be responsible for any increased costs
to the in-home supportive services case management, information, and
payrolling system attributable to that election. The department
shall collaborate with any county that elects to provide in-home
supportive services pursuant to this section prior to implementing
the amount of financial obligation for which the county shall be
responsible.
(j) To the extent permitted by federal law, personal care option
funds, obtained pursuant to Subchapter 19 (commencing with Section
1396) of Chapter 7 of Title 42 of the United States Code, along with
matching funds using the state and county sharing ratio established
in subdivision (c) of Section 12306, or any other funds that are
obtained pursuant to Subchapter 19 (commencing with Section 1396) of
Chapter 7 of Title 42 of the United States Code, may be used to
establish and operate an entity authorized by this section.
(k) Notwithstanding any other 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.
12301.7. The annual administrative cost for any public authority or
nonprofit consortium created pursuant to Section 12301.6, exclusive
of any increase in provider wages or benefits or employer taxes when
negotiated or agreed to by the public authority or nonprofit
consortium, shall be shared by the state and the counties as
prescribed in Section 12306.
12301.8. (a) (1) A public authority or nonprofit consortium
established pursuant to Section 12301.6, upon the request of an aged
or disabled adult or that individual's authorized representative, may
assist an employer, as defined in paragraph (2), in obtaining a
criminal background check conducted by the Department of Justice, as
authorized pursuant to Section 15660, of a provider, as described in
paragraph (3).
(2) For purposes of this section, an "employer" means an aged or
disabled adult, or that individual's authorized representative, who
is ineligible for benefits under this chapter and who receives care
by a provider as described in paragraph (3).
(3) For purposes of this section, a "provider" means a person who
is unlicensed and provides nonmedical domestic or personal care to an
aged or disabled adult who is ineligible to receive benefits under
this chapter, in the adult's own home.
(b) A public authority or nonprofit consortium may recover the
costs of administering this section, including the cost to the
Department of Justice for processing the criminal background check,
from the individual making the request, as described in subdivision
(a).
(c) No General Fund moneys shall be used to implement this
section.
12302. Each county is obligated to ensure that services are
provided to all eligible recipients during each month of the year in
accordance with the county plan.
In order to implement such a plan, an individual county may hire
homemakers and other in-home supportive personnel in accordance with
established county civil service requirements or merit system
requirements for those counties not having civil service, or may
contract with a city, county, or city and county agency, a local
health district, a voluntary nonprofit agency, a proprietary agency,
or an individual or make direct payment to a recipient for the
purchase of services.
County plans are effective upon submission to the department. In
reviewing county plans the department shall assure that plans are in
compliance with provisions of this article including compliance with
Section 12301. In the event the department finds a county plan is not
in compliance it shall take appropriate action to assure compliance.
The department shall monitor the actual monthly expenditures where
available for services to assure compliance with the county plans.
If the county's expenditure pattern is not consistent with the plan,
the department shall require the county to amend the plan.
12302.1. (a) Contracts entered into by a county under Section 12302
shall be for terms not exceeding three years. In the event of a
three-year contract, the county, at the end of the first contract
term, may renew the contract for a second term not exceeding one
year. The rate of reimbursement shall be negotiated consistent with
regulations promulgated by the State Department of Social Services.
For any extended contract, the rate shall reflect, but is not limited
to, the following financial considerations:
(1) Actual expenditures by the contractor as documented during the
first contract term and approved by the state.
(2) Changes in federal, state, or county program requirements.
(3) Federal and state minimum wage and contractual step merit
increases.
(4) Statutory taxes.
(5) Insurance costs.
(6) Reasonable costs which have been approved by the county
department of social services, as long as those costs do not increase
unreimbursed county expenditures or lead to a reduction in client
services, and those costs can be funded within the maximum allowable
rates set by the department for in-home supportive services contracts
and the county's state allocation for in-home supportive services.
(7) Other reasonable costs over which the contracting parties have
no control.
(b) (1) Except as provided in paragraph (2), the purchase of
services regulations adopted by the department that govern county
welfare departments shall also govern acceptable in-home supportive
services contracting, including the methods used to advertise,
procure, select, and award the contracts, and the procedures used to
amend, renew, or extend an existing contract with the same
contractor, including, in addition to rate changes, any other change
in other terms of the contract. In no case shall the department's
regulations governing in-home supportive services contracting
procedures differ from the contract procedures specified in the
department's purchase of service regulations for other services
purchased by county welfare departments, except as required by
federal law.
(2) The department may, through regulation, require until July 1,
2000, the prior review of all bid and contract documents for managed
care contracts under Section 12302.7.
12302.2. (a) (1) If the state or a county makes or provides for
direct payment to a provider chosen by a recipient or to the
recipient for the purchase of in-home supportive services, the
department shall perform or assure the performance of all rights,
duties and obligations of the recipient relating to those services as
required for purposes of unemployment compensation, unemployment
compensation disability benefits, workers' compensation, federal and
state income tax, and federal old-age survivors and disability
insurance benefits. Those rights, duties, and obligations include,
but are not limited to, registration and obtaining employer account
numbers, providing information, notices, and reports, making
applications and returns, and withholding in trust from the payments
made to or on behalf of a recipient amounts to be withheld from the
wages of the provider by the recipient as an employer, including the
sales tax extended to support services by Article 4 (commencing with
Section 6150) of Chapter 2 of Part 1 of Division 2 of the Revenue and
Taxation Code, and transmitting those amounts along with amounts
required for all contributions, premiums, and taxes payable by the
recipient as the employer to the appropriate person or state or
federal agency. The department may assure the performance of any or
all of these rights, duties, and obligations by contract with any
person, or any public or private agency.
(2) Contributions, premiums, and taxes shall be paid or
transmitted on the recipient's behalf as the employer for any period
commencing on or after January 1, 1978, except that contributions,
premiums, and taxes for federal and state income taxes and federal
old-age, survivors and disability insurance contributions shall be
paid or transmitted pursuant to this section commencing with the
first full month that begins 90 days after the effective date of this
section.
(3) Contributions, premiums, and taxes paid or transmitted on the
recipient's behalf for unemployment compensation, workers'
compensation, and the employer's share of federal old-age survivors
and disability insurance benefits shall be payable in addition to the
maximum monthly amount established pursuant to Section 12303.5 or
subdivision (a) of Section 12304 or other amount payable to or on
behalf of a recipient. Contributions, premiums, or taxes resulting
from liability incurred by the recipient as employer for unemployment
compensation, workers' compensation, and federal old-age, survivors
and disability insurance benefits with respect to any period
commencing on or after January 1, 1978, and ending on or before the
effective date of this section shall also be payable in addition to
the maximum monthly amount established pursuant to Section 12303.5 or
subdivision (a) of Section 12304 or other amount payable to or on
behalf of the recipient. Nothing in this section shall be construed
to permit any interference with the recipient's right to select the
provider of services or to authorize a charge for administrative
costs against any amount payable to or on behalf of a recipient.
(b) If the state makes or provides for direct payment to a
provider chosen by a recipient, the Controller shall make any
deductions from the wages of in-home supportive services personnel
that are authorized by Sections 1152 and 1153 of the Government Code,
as limited by Section 3515.6 of the Government Code, and for the
sales tax extended to support services by Article 4 (commencing with
Section 6150) of Chapter 2 of Part 1 of Division 2 of the Revenue and
Taxation Code.
(c) Funding for the costs of administering this section and for
contributions, premiums, and taxes paid or transmitted on the
recipient's behalf as an employer pursuant to this section shall
qualify, where possible, for the maximum federal reimbursement. To
the extent that federal funds are inadequate, notwithstanding Section
12306, the state shall provide funding for the purposes of this
section.
12302.21. (a) For purposes of providing cost-efficient workers'
compensation coverage for in-home supportive services providers under
this article, the department shall assume responsibility for
providing workers' compensation coverage for employees of nonprofit
agencies and proprietary agencies who provide in-home supportive
services pursuant to contracts with counties. The workers'
compensation coverage provided for these employees shall be provided
on the same terms as provided to providers under Section 12302.2 and
12302.5.
(b) A county that has existing contracts with nonprofit agencies
or proprietary agencies whose employees will be provided workers'
compensation coverage by the department pursuant to subdivision (a),
shall reduce the contract hourly rate by fifty cents ($0.50) per
hour, effective on the date that the department implements this
section.
12302.25. (a) On or before January 1, 2003, each county shall act
as, or establish, an employer for in-home supportive service
providers under Section 12302.2 for the purposes of Chapter 10
(commencing with Section 3500) of Division 4 of Title 1 of the
Government Code and other applicable state or federal laws. Each
county may utilize a public authority or nonprofit consortium as
authorized under Section 12301.6, the contract mode as authorized
under Sections 12302 and 12302.1, county administration of the
individual provider mode as authorized under Sections 12302 and
12302.2 for purposes of acting as, or providing, an employer under
Chapter 10 (commencing with Section 3500) of Division 4 of Title 1 of
the Government Code, county civil service personnel as authorized
under Section 12302, or mixed modes of service authorized pursuant to
this article and may establish regional agreements in establishing
an employer for purposes of this subdivision for providers of in-home
supportive services. Within 30 days of the effective date of this
section, the department shall develop a timetable for implementation
of this subdivision to ensure orderly compliance by counties.
Recipients of in-home supportive services shall retain the right to
choose the individuals that provide their care and to recruit,
select, train, reject, or change any provider under the contract mode
or to hire, fire, train, and supervise any provider under any other
mode of service. Upon request of a recipient, and in addition to a
county's selected metho
WELFARE AND INSTITUTIONS CODE
SECTION 12300-12317.2
12300. (a) The purpose of this article is to provide in every
county in a manner consistent with this chapter and the annual Budget
Act those supportive services identified in this section to aged,
blind, or disabled persons, as defined under this chapter, who are
unable to perform the services themselves and who cannot safely
remain in their homes or abodes of their own choosing unless these
services are provided.
(b) Supportive services shall include domestic services and
services related to domestic services, heavy cleaning, personal care
services, accompaniment by a provider when needed during necessary
travel to health-related appointments or to alternative resource
sites, yard hazard abatement, protective supervision, teaching and
demonstration directed at reducing the need for other supportive
services, and paramedical services which make it possible for the
recipient to establish and maintain an independent living
arrangement.
(c) Personal care services shall mean all of the following:
(1) Assistance with ambulation.
(2) Bathing, oral hygiene, and grooming.
(3) Dressing.
(4) Care and assistance with prosthetic devices.
(5) Bowel, bladder, and menstrual care.
(6) Repositioning, skin care, range of motion exercises, and
transfers.
(7) Feeding and assurance of adequate fluid intake.
(8) Respiration.
(9) Assistance with self-administration of medications.
(d) Personal care services are available if these services are
provided in the beneficiary's home and other locations as may be
authorized by the director. Among the locations that may be
authorized by the director under this paragraph is the recipient's
place of employment if all of the following conditions are met:
(1) The personal care services are limited to those that are
currently authorized for a recipient in the recipient's home and
those services are to be utilized by the recipient at the recipient's
place of employment to enable the recipient to obtain, retain, or
return to work. Authorized services utilized by the recipient at the
recipient's place of employment shall be services that are relevant
and necessary in supporting and maintaining employment. However,
workplace services shall not be used to supplant any reasonable
accommodations required of an employer by the Americans with
Disabilities Act (42 U.S.C. Sec. 12101 et seq.; ADA) or other legal
entitlements or third-party obligations.
(2) The provision of personal care services at the recipient's
place of employment shall be authorized only to the extent that the
total hours utilized at the workplace are within the total personal
care services hours authorized for the recipient in the home.
Additional personal care services hours may not be authorized in
connection with a recipient's employment.
(e) Where supportive services are provided by a person having the
legal duty pursuant to the Family Code to provide for the care of his
or her child who is the recipient, the provider of supportive
services shall receive remuneration for the services only when the
provider leaves full-time employment or is prevented from obtaining
full-time employment because no other suitable provider is available
and where the inability of the provider to provide supportive
services may result in inappropriate placement or inadequate care.
These providers shall be paid only for the following:
(1) Services related to domestic services.
(2) Personal care services.
(3) Accompaniment by a provider when needed during necessary
travel to health-related appointments or to alternative resource
sites.
(4) Protective supervision only as needed because of the
functional limitations of the child.
(5) Paramedical services.
(f) To encourage maximum voluntary services, so as to reduce
governmental costs, respite care shall also be provided. Respite care
is temporary or periodic service for eligible recipients to relieve
persons who are providing care without compensation.
(g) A person who is eligible to receive a service or services
under an approved federal waiver authorized pursuant to Section
14132.951, or a person who is eligible to receive a service or
services authorized pursuant to Section 14132.95, shall not be
eligible to receive the same service or services pursuant to this
article. In the event that the waiver authorized pursuant to Section
14132.951, as approved by the federal government, does not extend
eligibility to all persons otherwise eligible for services under this
article, or does not cover a service or particular services, or does
not cover the scope of a service that a person would otherwise be
eligible to receive under this article, those persons who are not
eligible for services, or for a particular service under the waiver
or Section 14132.95 shall be eligible for services under this
article.
(h) (1) All services provided pursuant to this article shall be
equal in amount, scope, and duration to the same services provided
pursuant to Section 14132.95, including any adjustments that may be
made to those services pursuant to subdivision (e) of Section
14132.95.
(2) Notwithstanding any other provision of this article, the rate
of reimbursement for in-home supportive services provided through any
mode of service shall not exceed the rate of reimbursement
established under subdivision (j) of Section 14132.95 for the same
mode of service unless otherwise provided in the annual Budget Act.
(3) The maximum number of hours available under Section 14132.95,
Section 14132.951, and this section, combined, shall be 283 hours per
month. Any recipient of services under this article shall receive no
more than the applicable maximum specified in Section 12303.4.
12300.1. As used in Section 12300 and in this article, "supportive
services" include those necessary paramedical services that are
ordered by a licensed health care professional who is lawfully
authorized to do so, which persons could provide for themselves but
for their functional limitations. Paramedical services include the
administration of medications, puncturing the skin or inserting a
medical device into a body orifice, activities requiring sterile
procedures, or other activities requiring judgment based on training
given by a licensed health care professional. These necessary
services shall be rendered by a provider under the direction of a
licensed health care professional, subject to the informed consent of
the recipient obtained as a part of the order for service. Any and
all references to Section 12300 in any statute heretofore or
hereafter enacted shall be deemed to be references to this section.
All statutory references to the supportive services specified in
Section 12300 shall be deemed to include paramedical services.
12300.2. In any in-home supportive services action concerning the
amount of in-home supportive services to be provided, the department
shall send a notice of the action to each recipient. The recipient
shall also receive a description of each specific task authorized and
the number of hours allotted. In the case of reassessment, the
recipient shall receive an identification of hours for tasks
increased or reduced and the difference from previous hours
authorized.
12301. (a) The intent of the Legislature in enacting this article
is to provide supplemental or additional services to the social and
rehabilitative services in Article 6 (commencing with Section 12250)
of this chapter. The Legislature further intends that necessary
in-home supportive services shall be provided in a uniform manner in
every county based on individual need consistent with this chapter
and, for the 1992-93 fiscal year the appropriation provided for those
services in the Budget Act, in the absence of alternative in-home
supportive services provided by an able and willing individual or
local agency at no cost to the recipient, except as required under
Section 12304.5. An able spouse who is available to assist the
recipient shall be deemed willing to provide at no cost any services
under this article except nonmedical personal services and
paramedical services. When a spouse leaves full-time employment or is
prevented from obtaining full-time employment because no other
suitable provider is available and where the inability of the
provider to provide supportive services may result in inappropriate
placement or inadequate care, the spouse shall also be paid for
accompaniment when needed during necessary travel to health-related
appointments and protective supervision.
(b) Each county shall be notified of its allocation and projected
caseload by July 31 of each fiscal year, or 30 days after the
enactment of the Budget Act, whichever occurs later.
(c) This section shall remain operative until July 1, 1993, and on
and after that date, shall remain inoperative until July 1, 1994, at
which date, this section shall become operative.
12301.03. (a) Notwithstanding any other provision of law, effective
October 1, 1992, and for the remainder of the 1992-93 fiscal year,
unless additional funds become available earlier for IHSS from the
personal care option, the department shall implement a 12 percent
reduction in hours of service to each recipient of services under
this article. For those recipients who have a documented unmet need
because of the limitations contained in Section 12303.4, this
reduction shall be applied first to the unmet need before being
applied to the hours to be authorized. If the recipient believes he
or she will be at serious risk of out-of-home placement as a
consequence of the reduction, the recipient may apply for a
restoration of reduction pursuant to Section 12301.05.
(b) It is the intent of the Legislature to encourage counties, to
the extent possible, to achieve reductions in a manner that least
disrupts the continuity of services to recipients. Counties are
further encouraged, to the extent possible, to assist recipients in
locating supplemental services, such as congregate or home-delivered
meals, and to assist providers in obtaining additional hours of
employment to mitigate the impact of reductions upon them.
(c) Notice of the reduction required by subdivision (a) shall be
provided to each recipient and shall include the following
information:
(1) The amount of hours the recipient received prior to the
reduction and the amount of hours the recipient is to receive as a
result of the reduction.
(2) The reason for the reduction.
(3) A statement that the reduction shall be effective through June
30, 1993, unless additional funds become available earlier for IHSS
as a result of provision of Personal Care services.
(4) How all or part of the reduction may be restored as set forth
in Section 12301.05 if the recipient believes he or she will be at
serious risk of out-of-home placement as a consequence of the
reduction.
(d) Notice of the reduction shall be provided to providers as
expeditiously as possible by the Controller, in consultation with the
department.
(e) Notwithstanding Section 11004, in any proceeding pursuant to
Section 10950 where it has been determined that the sole issue was
the reduction required by this section, any aid paid pending the
hearing shall be recoverable as an overpayment.
12301.05. Any aged, blind, or disabled individual who is eligible
for services under this chapter who has had his or her services
reduced under subdivision (a) of Section 12301.03 but who believes he
or she is at serious risk of out-of-home placement unless all or
part of the reduction is restored may apply for an IHSS care
supplement. Where there is such an application within 10 days of
receiving the reduction notice or prior to the implementation of the
reduction, the IHSS shall continue until the county finds that the
recipient does or does not require restoration of any hours through
the IHSS care supplement. If the recipient disagrees with the county'
s determination concerning the need for the IHSS care supplement, the
recipient may request a hearing on that determination. However,
there will be no aid paid pending in that case.
(b) For purposes of subdivision (a), an individual is in serious
risk of out-of-home placement only if (1) the individual meets the
criteria for long-term care services as set forth in the Manual of
Criteria for Medi-Cal Authorization published by the State Department
of Health Services (January 1, 1982, last amended September, 1991),
or (2) the individual cannot summon emergency assistance.
(c) The county shall give a high priority to prompt screening of
these persons to determine their need for IHSS Care Supplement.
12301.06. (a) (1) Notwithstanding any other provision of law,
except as provided in subdivision (d), the department shall implement
a 3.6-percent reduction in hours of service to each recipient of
services under this article which shall be applied to the recipient's
hours as authorized pursuant to the most recent assessment. This
reduction shall be effective 90 days after the enactment of the act
that adds this section. The reduction required by this section shall
not preclude any reassessment to which a recipient would otherwise be
entitled. However, hours authorized pursuant to a reassessment shall
be subject to the 3.6-percent reduction required by this section.
(2) A recipient of services under this article may direct the
manner in which the reduction of hours is applied to the recipient's
previously authorized services.
(3) For those individuals who have a documented unmet need
excluding protective supervision because of the limitations on
authorized hours under Section 12303.4, the reduction shall be taken
first from the documented unmet need.
(b) (1) The reduction in hours of service pursuant to subdivision
(a) shall cease to be implemented on July 1, 2012.
(2) It is the intent of the Legislature that on July 1, 2012,
services shall be restored to the level authorized pursuant to the
recipient's most recent assessment, and increased by the previously
deducted 3.6 percent.
(c) The notice of action informing the recipient of the reduction
pursuant to subdivision (a) shall be mailed at least 30 days prior to
the reduction going into effect. The notice of action shall be
understandable to the recipient and translated into all languages
spoken by a substantial number of the public served by the In-Home
Supportive Services program, in accordance with Section 7295.2 of the
Government Code. The notice shall not contain any recipient
financial or confidential identifying information other than the
recipient's name, address, and Case Management Information and
Payroll System (CMIPS) client identification number, and shall
include, but not be limited to, all of the following information:
(1) The aggregate number of authorized hours before the reduction
pursuant to subdivision (a) and the aggregate number of authorized
hours after the reduction.
(2) That the recipient may direct the manner in which the
reduction of authorized hours is applied to the recipient's
previously authorized services.
(3) That the reduction of hours shall remain in effect until July
1, 2012, at which time service hours shall be restored to the
recipient's authorized level, based on the most recent assessment,
and increased by the previously deducted 3.6 percent.
(d) A recipient shall have all appeal rights otherwise provided
for under Chapter 7 (commencing with Section 10950) of Part 2.
(e) (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.
(f) This section shall become inoperative on July 1, 2012, and, as
of January 1, 2013, this section is repealed, unless a later enacted
statute that is enacted before January 1, 2013, deletes or extends
the dates on which it becomes inoperative and is repealed.
12301.1. (a) The department shall adopt regulations establishing a
uniform range of services available to all eligible recipients based
upon individual needs. The availability of services under these
regulations is subject to the provisions of Section 12301 and county
plans developed pursuant to Section 12302.
(b) The county welfare department shall assess each recipient's
continuing need for supportive services at varying intervals as
necessary, but at least once every 12 months.
(c) (1) Notwithstanding subdivision (b), at the county's option,
assessments may be extended, on a case-by-case basis, for up to six
months beyond the regular 12-month period, provided that the county
documents that all of the following conditions exist:
(A) The recipient has had at least one reassessment since the
initial program intake assessment.
(B) The recipient's living arrangement has not changed since the
last annual reassessment and the recipient lives with others, or has
regular meaningful contact with persons other than his or her service
provider.
(C) The recipient or, if the recipient is a minor, his or her
parent or legal guardian, or if incompetent, his or her conservator,
is able to satisfactorily direct the recipient's care.
(D) There has been no known change in the recipient's supportive
service needs within the previous 24 months.
(E) No reports have been made to, and there has been no
involvement of, an adult protective services agency or agencies since
the county last assessed the recipient.
(F) The recipient has not had a change in provider or providers
for at least six months.
(G) The recipient has not reported a change in his or her need for
supportive services that requires a reassessment.
(H) The recipient has not been hospitalized within the last three
months.
(2) If some, but not all, of the conditions specified in paragraph
(1) of subdivision (c) are met, the county may consider other
factors in determining whether an extended assessment interval is
appropriate, including, but not limited to, involvement in the
recipient's care of a social worker, case manager, or other similar
representative from another human services agency, such as a regional
center or county mental health program, or communications, or other
instructions from a physician or other licensed health care
professional that the recipient's medical condition is unlikely to
change.
(3) A county may reassess a recipient's need for services at a
time interval of less than 12 months from a recipient's initial
intake or last assessment if the county social worker has information
indicating that the recipient's need for services is expected to
decrease in less than 12 months.
(d) A county shall assess a recipient's need for supportive
services any time that the recipient notifies the county of a need to
adjust the supportive services hours authorized, or when there are
other indications or expectations of a change in circumstances
affecting the recipient's need for supportive services.
(e) (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,
until emergency regulations are filed with the Secretary of State,
the department may implement this section through all-county letters
or similar instructions from the director. The department shall adopt
emergency regulations implementing this section no later than
September 30, 2005, unless notification of a delay is made to the
Chair of the Joint Legislative Budget Committee prior to that date.
The notification shall include the reason for the delay, the current
status of the emergency regulations, a date by which the emergency
regulations shall be adopted, and a statement of need to continue use
of all-county letters or similar instructions. Under no
circumstances shall the adoption of emergency regulations be delayed,
or the use of all-county letters or similar instructions be
extended, beyond June 30, 2006.
(2) The adoption of regulations implementing this section shall be
deemed an emergency and necessary for the immediate preservation of
the public peace, health, safety, or general welfare. The emergency
regulations authorized by this section shall be exempt from review by
the Office of Administrative Law. The emergency regulations
authorized by this section shall be submitted to the Office of
Administrative Law for filing with the Secretary of State and shall
remain in effect for no more than 180 days by which time final
regulations shall be adopted. The department shall seek input from
the entities listed in Section 12305.72 when developing all-county
letters or similar instructions and the regulations.
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.
12301.2. (a) (1) The department, in consultation and coordination
with county welfare departments and in accordance with Section
12305.72, shall 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.
(2) The guidelines shall specify a range of time normally required
for each supportive service task necessary to ensure the health,
safety, and independence of the recipient. The guidelines shall also
provide criteria to assist county workers to determine when an
individual's service need falls outside the range of time provided in
the guidelines.
(3) In establishing the guidelines the department shall consider,
among other factors, adherence to universal precautions, existing
utilization patterns and outcomes associated with different levels of
utilization, and the need to avoid cost shifting to other government
program services. During the development of the guidelines the
department may seek advice from health professionals such as public
health nurses or physical or occupational therapists.
(b) A county shall use the statewide hourly task guidelines when
conducting an individual assessment or reassessment of an individual'
s need for supportive services.
(c) Subject to the limits imposed by Section 12303.4, counties
shall approve an amount of time different from the guideline amount
whenever the individual assessment indicates that the recipient's
needs require an amount of time that is outside the range provided
for in the guidelines. Whenever task times outside the range provided
in the guidelines are authorized the county shall document the need
for the authorized service level.
(d) The department shall adopt regulations to implement this
section by June 30, 2006. The department shall seek input from the
entities listed in Section 12305.72 when developing the regulations.
12301.21. (a) The department shall, in consultation and
coordination with the county welfare departments and in accordance
with Section 12305.72, develop for statewide use a standard form on
which to obtain certification by a physician or other appropriate
medical professional as determined by the department of a person's
need for protective supervision.
(b) At the time of an initial assessment at which a recipient's
potential need for protective supervision has been identified, the
county shall request that a person requesting protective supervision
submit the certification to the county. The county shall use the
certification in conjunction with other pertinent information to
assess the person's need for protective supervision. The
certification submitted by the person shall be considered as one
indicator of the need for protective supervision, but shall not be
determinative. In the event that the person fails to submit the
certification, the county shall make its determination of need based
upon other available evidence.
(c) At the time of reassessment of a person receiving authorized
protective supervision, the county shall determine the need to obtain
a new certification. The county may request another certification
from a recipient if determined necessary. The county shall document
the basis for its determination in the recipient's case file.
(d) (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,
until emergency regulations are filed with the Secretary of State,
the department may implement this section through all-county letters
or similar instructions from the director. The department shall adopt
emergency regulations implementing this chapter no later than
September 30, 2005, unless notification of a delay is made to the
Chair of the Joint Legislative Budget Committee prior to that date.
The notification shall include the reason for the delay, the current
status of the emergency regulations, a date by which the emergency
regulations shall be adopted, and a statement of need to continue use
of all-county letters or similar instructions. Under no
circumstances shall the adoption of emergency regulations be delayed,
or the use of all-county letters or similar instructions be
extended, beyond June 30, 2006.
(2) The adoption of regulations implementing this section shall be
deemed an emergency and necessary for the immediate preservation of
the public peace, health, safety, or general welfare. The emergency
regulations authorized by this section shall be exempt from review by
the Office of Administrative Law. The emergency regulations
authorized by this section shall be submitted to the Office of
Administrative Law for filing with the Secretary of State and shall
remain in effect for no more than 180 days by which time final
regulations shall be promulgated. The department shall seek input
from the entities listed in Section 12305.72 when developing
all-county letters or similar instructions and the regulations.
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.
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.
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.
12301.3. (a) Each county shall appoint an in-home supportive
services advisory committee that shall be comprised of not more than
11 individuals. No less 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 as recipients of services under this article.
(1) (A) In counties with fewer than 500 recipients of services
provided pursuant to this article or Section 14132.95, at least one
member of the advisory committee shall be a current or former
provider of in-home supportive services.
(B) In counties with 500 or more recipients of services provided
pursuant to this article or Section 14132.95, at least two members of
the advisory committee shall be a current or former provider of
in-home supportive services.
(2) Individuals who represent organizations that advocate for
people with disabilities or seniors may be appointed to committees
under this section.
(3) Individuals from community-based organizations that advocate
on behalf of home care employees may be appointed to committees under
this section.
(4) A county board of supervisors shall not appoint more than one
county employee as a member of the advisory committee, but may
designate any county employee to provide ongoing advice and support
to the advisory committee.
(b) Prior to the appointment of members to a committee required by
subdivision (a), the county board of supervisors shall solicit
recommendations for qualified members through a fair and open process
that includes the provision of reasonable written notice to, and
reasonable response time by, members of the general public and
interested persons and organizations.
(c) The advisory committee shall submit recommendations to the
county board of supervisors on the preferred mode or modes of service
to be utilized in the county for in-home supportive services.
(d) Any county that has established a governing body, as provided
in subdivision (b) of Section 12301.6, prior to July 1, 2000, shall
not be required to comply with the composition requirements of
subdivision (a) and shall be deemed to be in compliance with this
section.
12301.4. (a) Each advisory committee established pursuant to
Section 12301.3 or 12301.6 shall provide ongoing advice and
recommendations regarding in-home supportive services to the county
board of supervisors, any administrative body in the county that is
related to the delivery and administration of in-home supportive
services, and the governing body and administrative agency of the
public authority, nonprofit consortium, contractor, and public
employees.
(b) Each county shall be eligible to receive state reimbursements
of administrative costs for only one advisory committee and shall
comply with the requirements of subdivision (e) of Section 12302.25.
12301.5. The department may secure to the extent feasible such
in-home supportive and other health services for persons eligible
under this article to which they are entitled under the Medi-Cal Act
(Chapter 7 (commencing with Section 14000) of this part).
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.
(iii) Commencing 90 days after the effective date of the act that
adds Section 12305.87, and upon notice from the Department of
Justice that an applicant who is subject to the provisions of that
section has been convicted of, or incarcerated following conviction
for, an offense described in subdivision (b) of that section, the
public authority or nonprofit consortium shall deny the applicant's
request to become a provider of supportive services to any recipient
of in-home supportive services, subject to the individual waiver and
exception processes described in that section. An applicant who is
denied on the basis of Section 12305.87 shall be informed by the
public authority or nonprofit consortium of the individual waiver and
exception processes described in that section.
(B) (i) 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.
(F) A nonprofit consortium or a public authority authorized to
secure a criminal background check clearance pursuant to this section
shall accept a clearance for an applicant described in clause (i) of
subparagraph (A) who has been deemed eligible by another nonprofit
consortium, public authority, or county with criminal background
check authority pursuant to either Section 12305.86 or this section,
to receive payment for providing services pursuant to this article.
Existence of a clearance shall be determined by verification through
the case management, information, and payrolling system, that another
county, nonprofit consortium, or public authority with criminal
background check authority pursuant to Section 12305.86 or this
section has deemed the current or prospective provider to be eligible
to receive payment for providing services pursuant to this article.
(3) Establishment of a referral system under which in-home
supportive services personnel shall be referred to recipients.
(4) Providing for training for providers and recipients.
(5) (A) Performing any other functions related to the delivery of
in-home supportive services.
(B) (i) Upon request of a recipient of in-home supportive services
pursuant to this chapter, or a recipient of personal care services
under the Medi-Cal program pursuant to Section 14132.95, a public
authority or nonprofit consortium may provide a criminal background
check on a nonregistry applicant or provider from the Department of
Justice, in accordance with clause (i) of subparagraph (A) of
paragraph (2) of subdivision (e). If the person who is the subject of
the criminal background check is not hired or is terminated because
of the information contained in the criminal background report, the
provisions of subparagraph (B) of paragraph (2) of subdivision (e)
shall apply.
(ii) A recipient of in-home supportive services pursuant to this
chapter or a recipient of personal care services under the Medi-Cal
program may elect to employ an individual as their service provider
notwithstanding the individual's record of previous criminal
convictions, unless those convictions include any of the offenses
specified in Section 12305.81.
(6) Ensuring that the requirements of the personal care option
pursuant to Subchapter 19 (commencing with Section 1396) of Chapter 7
of Title 42 of the United States Code are met.
(f) (1) Any nonprofit consortium contracting with a county
pursuant to this section or any public authority created pursuant to
this section shall be deemed not to be the employer of in-home
supportive services personnel referred to recipients under this
section for purposes of liability due to the negligence or
intentional torts of the in-home supportive services personnel.
(2) In no case shall a nonprofit consortium contracting with a
county pursuant to this section or any public authority created
pursuant to this section be held liable for action or omission of any
in-home supportive services personnel whom the nonprofit consortium
or public authority did not list on its registry or otherwise refer
to a recipient.
(3) Counties and the state shall be immune from any liability
resulting from their implementation of this section in the
administration of the In-Home Supportive Services program. Any
obligation of the public authority or consortium pursuant to this
section, whether statutory, contractual, or otherwise, shall be the
obligation solely of the public authority or nonprofit consortium,
and shall not be the obligation of the county or state.
(g) Any nonprofit consortium contracting with a county pursuant to
this section shall ensure that it has a governing body that complies
with the requirements of subparagraph (B) of paragraph (3) of
subdivision (b) or an advisory committee that complies with
subparagraphs (B) and (C) of paragraph (3) of subdivision (b).
(h) Recipients of services under this section may elect to receive
services from in-home supportive services personnel who are not
referred to them by the public authority or nonprofit consortium.
Those personnel shall be referred to the public authority or
nonprofit consortium for the purposes of wages, benefits, and other
terms and conditions of employment.
(i) (1) Nothing in this section shall be construed to affect the
state's responsibility with respect to the state payroll system,
unemployment insurance, or workers' compensation and other provisions
of Section 12302.2 for providers of in-home supportive services.
(2) The Controller shall make any deductions from the wages of
in-home supportive services personnel, who are employees of a public
authority pursuant to paragraph (1) of subdivision (c), that are
agreed to by that public authority in collective bargaining with the
designated representative of the in-home supportive services
personnel pursuant to Chapter 10 (commencing with Section 3500) of
Division 4 of Title 1 of the Government Code and transfer the
deducted funds as directed in that agreement.
(3) Any county that elects to provide in-home supportive services
pursuant to this section shall be responsible for any increased costs
to the in-home supportive services case management, information, and
payrolling system attributable to that election. The department
shall collaborate with any county that elects to provide in-home
supportive services pursuant to this section prior to implementing
the amount of financial obligation for which the county shall be
responsible.
(j) To the extent permitted by federal law, personal care option
funds, obtained pursuant to Subchapter 19 (commencing with Section
1396) of Chapter 7 of Title 42 of the United States Code, along with
matching funds using the state and county sharing ratio established
in subdivision (c) of Section 12306, or any other funds that are
obtained pursuant to Subchapter 19 (commencing with Section 1396) of
Chapter 7 of Title 42 of the United States Code, may be used to
establish and operate an entity authorized by this section.
(k) Notwithstanding any other 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.
12301.7. The annual administrative cost for any public authority or
nonprofit consortium created pursuant to Section 12301.6, exclusive
of any increase in provider wages or benefits or employer taxes when
negotiated or agreed to by the public authority or nonprofit
consortium, shall be shared by the state and the counties as
prescribed in Section 12306.
12301.8. (a) (1) A public authority or nonprofit consortium
established pursuant to Section 12301.6, upon the request of an aged
or disabled adult or that individual's authorized representative, may
assist an employer, as defined in paragraph (2), in obtaining a
criminal background check conducted by the Department of Justice, as
authorized pursuant to Section 15660, of a provider, as described in
paragraph (3).
(2) For purposes of this section, an "employer" means an aged or
disabled adult, or that individual's authorized representative, who
is ineligible for benefits under this chapter and who receives care
by a provider as described in paragraph (3).
(3) For purposes of this section, a "provider" means a person who
is unlicensed and provides nonmedical domestic or personal care to an
aged or disabled adult who is ineligible to receive benefits under
this chapter, in the adult's own home.
(b) A public authority or nonprofit consortium may recover the
costs of administering this section, including the cost to the
Department of Justice for processing the criminal background check,
from the individual making the request, as described in subdivision
(a).
(c) No General Fund moneys shall be used to implement this
section.
12302. Each county is obligated to ensure that services are
provided to all eligible recipients during each month of the year in
accordance with the county plan.
In order to implement such a plan, an individual county may hire
homemakers and other in-home supportive personnel in accordance with
established county civil service requirements or merit system
requirements for those counties not having civil service, or may
contract with a city, county, or city and county agency, a local
health district, a voluntary nonprofit agency, a proprietary agency,
or an individual or make direct payment to a recipient for the
purchase of services.
County plans are effective upon submission to the department. In
reviewing county plans the department shall assure that plans are in
compliance with provisions of this article including compliance with
Section 12301. In the event the department finds a county plan is not
in compliance it shall take appropriate action to assure compliance.
The department shall monitor the actual monthly expenditures where
available for services to assure compliance with the county plans.
If the county's expenditure pattern is not consistent with the plan,
the department shall require the county to amend the plan.
12302.1. (a) Contracts entered into by a county under Section 12302
shall be for terms not exceeding three years. In the event of a
three-year contract, the county, at the end of the first contract
term, may renew the contract for a second term not exceeding one
year. The rate of reimbursement shall be negotiated consistent with
regulations promulgated by the State Department of Social Services.
For any extended contract, the rate shall reflect, but is not limited
to, the following financial considerations:
(1) Actual expenditures by the contractor as documented during the
first contract term and approved by the state.
(2) Changes in federal, state, or county program requirements.
(3) Federal and state minimum wage and contractual step merit
increases.
(4) Statutory taxes.
(5) Insurance costs.
(6) Reasonable costs which have been approved by the county
department of social services, as long as those costs do not increase
unreimbursed county expenditures or lead to a reduction in client
services, and those costs can be funded within the maximum allowable
rates set by the department for in-home supportive services contracts
and the county's state allocation for in-home supportive services.
(7) Other reasonable costs over which the contracting parties have
no control.
(b) (1) Except as provided in paragraph (2), the purchase of
services regulations adopted by the department that govern county
welfare departments shall also govern acceptable in-home supportive
services contracting, including the methods used to advertise,
procure, select, and award the contracts, and the procedures used to
amend, renew, or extend an existing contract with the same
contractor, including, in addition to rate changes, any other change
in other terms of the contract. In no case shall the department's
regulations governing in-home supportive services contracting
procedures differ from the contract procedures specified in the
department's purchase of service regulations for other services
purchased by county welfare departments, except as required by
federal law.
(2) The department may, through regulation, require until July 1,
2000, the prior review of all bid and contract documents for managed
care contracts under Section 12302.7.
12302.2. (a) (1) If the state or a county makes or provides for
direct payment to a provider chosen by a recipient or to the
recipient for the purchase of in-home supportive services, the
department shall perform or assure the performance of all rights,
duties and obligations of the recipient relating to those services as
required for purposes of unemployment compensation, unemployment
compensation disability benefits, workers' compensation, federal and
state income tax, and federal old-age survivors and disability
insurance benefits. Those rights, duties, and obligations include,
but are not limited to, registration and obtaining employer account
numbers, providing information, notices, and reports, making
applications and returns, and withholding in trust from the payments
made to or on behalf of a recipient amounts to be withheld from the
wages of the provider by the recipient as an employer, including the
sales tax extended to support services by Article 4 (commencing with
Section 6150) of Chapter 2 of Part 1 of Division 2 of the Revenue and
Taxation Code, and transmitting those amounts along with amounts
required for all contributions, premiums, and taxes payable by the
recipient as the employer to the appropriate person or state or
federal agency. The department may assure the performance of any or
all of these rights, duties, and obligations by contract with any
person, or any public or private agency.
(2) Contributions, premiums, and taxes shall be paid or
transmitted on the recipient's behalf as the employer for any period
commencing on or after January 1, 1978, except that contributions,
premiums, and taxes for federal and state income taxes and federal
old-age, survivors and disability insurance contributions shall be
paid or transmitted pursuant to this section commencing with the
first full month that begins 90 days after the effective date of this
section.
(3) Contributions, premiums, and taxes paid or transmitted on the
recipient's behalf for unemployment compensation, workers'
compensation, and the employer's share of federal old-age survivors
and disability insurance benefits shall be payable in addition to the
maximum monthly amount established pursuant to Section 12303.5 or
subdivision (a) of Section 12304 or other amount payable to or on
behalf of a recipient. Contributions, premiums, or taxes resulting
from liability incurred by the recipient as employer for unemployment
compensation, workers' compensation, and federal old-age, survivors
and disability insurance benefits with respect to any period
commencing on or after January 1, 1978, and ending on or before the
effective date of this section shall also be payable in addition to
the maximum monthly amount established pursuant to Section 12303.5 or
subdivision (a) of Section 12304 or other amount payable to or on
behalf of the recipient. Nothing in this section shall be construed
to permit any interference with the recipient's right to select the
provider of services or to authorize a charge for administrative
costs against any amount payable to or on behalf of a recipient.
(b) If the state makes or provides for direct payment to a
provider chosen by a recipient, the Controller shall make any
deductions from the wages of in-home supportive services personnel
that are authorized by Sections 1152 and 1153 of the Government Code,
as limited by Section 3515.6 of the Government Code, and for the
sales tax extended to support services by Article 4 (commencing with
Section 6150) of Chapter 2 of Part 1 of Division 2 of the Revenue and
Taxation Code.
(c) Funding for the costs of administering this section and for
contributions, premiums, and taxes paid or transmitted on the
recipient's behalf as an employer pursuant to this section shall
qualify, where possible, for the maximum federal reimbursement. To
the extent that federal funds are inadequate, notwithstanding Section
12306, the state shall provide funding for the purposes of this
section.
12302.21. (a) For purposes of providing cost-efficient workers'
compensation coverage for in-home supportive services providers under
this article, the department shall assume responsibility for
providing workers' compensation coverage for employees of nonprofit
agencies and proprietary agencies who provide in-home supportive
services pursuant to contracts with counties. The workers'
compensation coverage provided for these employees shall be provided
on the same terms as provided to providers under Section 12302.2 and
12302.5.
(b) A county that has existing contracts with nonprofit agencies
or proprietary agencies whose employees will be provided workers'
compensation coverage by the department pursuant to subdivision (a),
shall reduce the contract hourly rate by fifty cents ($0.50) per
hour, effective on the date that the department implements this
section.
12302.25. (a) On or before January 1, 2003, each county shall act
as, or establish, an employer for in-home supportive service
providers under Section 12302.2 for the purposes of Chapter 10
(commencing with Section 3500) of Division 4 of Title 1 of the
Government Code and other applicable state or federal laws. Each
county may utilize a public authority or nonprofit consortium as
authorized under Section 12301.6, the contract mode as authorized
under Sections 12302 and 12302.1, county administration of the
individual provider mode as authorized under Sections 12302 and
12302.2 for purposes of acting as, or providing, an employer under
Chapter 10 (commencing with Section 3500) of Division 4 of Title 1 of
the Government Code, county civil service personnel as authorized
under Section 12302, or mixed modes of service authorized pursuant to
this article and may establish regional agreements in establishing
an employer for purposes of this subdivision for providers of in-home
supportive services. Within 30 days of the effective date of this
section, the department shall develop a timetable for implementation
of this subdivision to ensure orderly compliance by counties.
Recipients of in-home supportive services shall retain the right to
choose the individuals that provide their care and to recruit,
select, train, reject, or change any provider under the contract mode
or to hire, fire, train, and supervise any provider under any other
mode of service. Upon request of a recipient, and in addition to a
county's selected metho
WELFARE AND INSTITUTIONS CODE
SECTION 12300-12317.2
12300. (a) The purpose of this article is to provide in every
county in a manner consistent with this chapter and the annual Budget
Act those supportive services identified in this section to aged,
blind, or disabled persons, as defined under this chapter, who are
unable to perform the services themselves and who cannot safely
remain in their homes or abodes of their own choosing unless these
services are provided.
(b) Supportive services shall include domestic services and
services related to domestic services, heavy cleaning, personal care
services, accompaniment by a provider when needed during necessary
travel to health-related appointments or to alternative resource
sites, yard hazard abatement, protective supervision, teaching and
demonstration directed at reducing the need for other supportive
services, and paramedical services which make it possible for the
recipient to establish and maintain an independent living
arrangement.
(c) Personal care services shall mean all of the following:
(1) Assistance with ambulation.
(2) Bathing, oral hygiene, and grooming.
(3) Dressing.
(4) Care and assistance with prosthetic devices.
(5) Bowel, bladder, and menstrual care.
(6) Repositioning, skin care, range of motion exercises, and
transfers.
(7) Feeding and assurance of adequate fluid intake.
(8) Respiration.
(9) Assistance with self-administration of medications.
(d) Personal care services are available if these services are
provided in the beneficiary's home and other locations as may be
authorized by the director. Among the locations that may be
authorized by the director under this paragraph is the recipient's
place of employment if all of the following conditions are met:
(1) The personal care services are limited to those that are
currently authorized for a recipient in the recipient's home and
those services are to be utilized by the recipient at the recipient's
place of employment to enable the recipient to obtain, retain, or
return to work. Authorized services utilized by the recipient at the
recipient's place of employment shall be services that are relevant
and necessary in supporting and maintaining employment. However,
workplace services shall not be used to supplant any reasonable
accommodations required of an employer by the Americans with
Disabilities Act (42 U.S.C. Sec. 12101 et seq.; ADA) or other legal
entitlements or third-party obligations.
(2) The provision of personal care services at the recipient's
place of employment shall be authorized only to the extent that the
total hours utilized at the workplace are within the total personal
care services hours authorized for the recipient in the home.
Additional personal care services hours may not be authorized in
connection with a recipient's employment.
(e) Where supportive services are provided by a person having the
legal duty pursuant to the Family Code to provide for the care of his
or her child who is the recipient, the provider of supportive
services shall receive remuneration for the services only when the
provider leaves full-time employment or is prevented from obtaining
full-time employment because no other suitable provider is available
and where the inability of the provider to provide supportive
services may result in inappropriate placement or inadequate care.
These providers shall be paid only for the following:
(1) Services related to domestic services.
(2) Personal care services.
(3) Accompaniment by a provider when needed during necessary
travel to health-related appointments or to alternative resource
sites.
(4) Protective supervision only as needed because of the
functional limitations of the child.
(5) Paramedical services.
(f) To encourage maximum voluntary services, so as to reduce
governmental costs, respite care shall also be provided. Respite care
is temporary or periodic service for eligible recipients to relieve
persons who are providing care without compensation.
(g) A person who is eligible to receive a service or services
under an approved federal waiver authorized pursuant to Section
14132.951, or a person who is eligible to receive a service or
services authorized pursuant to Section 14132.95, shall not be
eligible to receive the same service or services pursuant to this
article. In the event that the waiver authorized pursuant to Section
14132.951, as approved by the federal government, does not extend
eligibility to all persons otherwise eligible for services under this
article, or does not cover a service or particular services, or does
not cover the scope of a service that a person would otherwise be
eligible to receive under this article, those persons who are not
eligible for services, or for a particular service under the waiver
or Section 14132.95 shall be eligible for services under this
article.
(h) (1) All services provided pursuant to this article shall be
equal in amount, scope, and duration to the same services provided
pursuant to Section 14132.95, including any adjustments that may be
made to those services pursuant to subdivision (e) of Section
14132.95.
(2) Notwithstanding any other provision of this article, the rate
of reimbursement for in-home supportive services provided through any
mode of service shall not exceed the rate of reimbursement
established under subdivision (j) of Section 14132.95 for the same
mode of service unless otherwise provided in the annual Budget Act.
(3) The maximum number of hours available under Section 14132.95,
Section 14132.951, and this section, combined, shall be 283 hours per
month. Any recipient of services under this article shall receive no
more than the applicable maximum specified in Section 12303.4.
12300.1. As used in Section 12300 and in this article, "supportive
services" include those necessary paramedical services that are
ordered by a licensed health care professional who is lawfully
authorized to do so, which persons could provide for themselves but
for their functional limitations. Paramedical services include the
administration of medications, puncturing the skin or inserting a
medical device into a body orifice, activities requiring sterile
procedures, or other activities requiring judgment based on training
given by a licensed health care professional. These necessary
services shall be rendered by a provider under the direction of a
licensed health care professional, subject to the informed consent of
the recipient obtained as a part of the order for service. Any and
all references to Section 12300 in any statute heretofore or
hereafter enacted shall be deemed to be references to this section.
All statutory references to the supportive services specified in
Section 12300 shall be deemed to include paramedical services.
12300.2. In any in-home supportive services action concerning the
amount of in-home supportive services to be provided, the department
shall send a notice of the action to each recipient. The recipient
shall also receive a description of each specific task authorized and
the number of hours allotted. In the case of reassessment, the
recipient shall receive an identification of hours for tasks
increased or reduced and the difference from previous hours
authorized.
12301. (a) The intent of the Legislature in enacting this article
is to provide supplemental or additional services to the social and
rehabilitative services in Article 6 (commencing with Section 12250)
of this chapter. The Legislature further intends that necessary
in-home supportive services shall be provided in a uniform manner in
every county based on individual need consistent with this chapter
and, for the 1992-93 fiscal year the appropriation provided for those
services in the Budget Act, in the absence of alternative in-home
supportive services provided by an able and willing individual or
local agency at no cost to the recipient, except as required under
Section 12304.5. An able spouse who is available to assist the
recipient shall be deemed willing to provide at no cost any services
under this article except nonmedical personal services and
paramedical services. When a spouse leaves full-time employment or is
prevented from obtaining full-time employment because no other
suitable provider is available and where the inability of the
provider to provide supportive services may result in inappropriate
placement or inadequate care, the spouse shall also be paid for
accompaniment when needed during necessary travel to health-related
appointments and protective supervision.
(b) Each county shall be notified of its allocation and projected
caseload by July 31 of each fiscal year, or 30 days after the
enactment of the Budget Act, whichever occurs later.
(c) This section shall remain operative until July 1, 1993, and on
and after that date, shall remain inoperative until July 1, 1994, at
which date, this section shall become operative.
12301.03. (a) Notwithstanding any other provision of law, effective
October 1, 1992, and for the remainder of the 1992-93 fiscal year,
unless additional funds become available earlier for IHSS from the
personal care option, the department shall implement a 12 percent
reduction in hours of service to each recipient of services under
this article. For those recipients who have a documented unmet need
because of the limitations contained in Section 12303.4, this
reduction shall be applied first to the unmet need before being
applied to the hours to be authorized. If the recipient believes he
or she will be at serious risk of out-of-home placement as a
consequence of the reduction, the recipient may apply for a
restoration of reduction pursuant to Section 12301.05.
(b) It is the intent of the Legislature to encourage counties, to
the extent possible, to achieve reductions in a manner that least
disrupts the continuity of services to recipients. Counties are
further encouraged, to the extent possible, to assist recipients in
locating supplemental services, such as congregate or home-delivered
meals, and to assist providers in obtaining additional hours of
employment to mitigate the impact of reductions upon them.
(c) Notice of the reduction required by subdivision (a) shall be
provided to each recipient and shall include the following
information:
(1) The amount of hours the recipient received prior to the
reduction and the amount of hours the recipient is to receive as a
result of the reduction.
(2) The reason for the reduction.
(3) A statement that the reduction shall be effective through June
30, 1993, unless additional funds become available earlier for IHSS
as a result of provision of Personal Care services.
(4) How all or part of the reduction may be restored as set forth
in Section 12301.05 if the recipient believes he or she will be at
serious risk of out-of-home placement as a consequence of the
reduction.
(d) Notice of the reduction shall be provided to providers as
expeditiously as possible by the Controller, in consultation with the
department.
(e) Notwithstanding Section 11004, in any proceeding pursuant to
Section 10950 where it has been determined that the sole issue was
the reduction required by this section, any aid paid pending the
hearing shall be recoverable as an overpayment.
12301.05. Any aged, blind, or disabled individual who is eligible
for services under this chapter who has had his or her services
reduced under subdivision (a) of Section 12301.03 but who believes he
or she is at serious risk of out-of-home placement unless all or
part of the reduction is restored may apply for an IHSS care
supplement. Where there is such an application within 10 days of
receiving the reduction notice or prior to the implementation of the
reduction, the IHSS shall continue until the county finds that the
recipient does or does not require restoration of any hours through
the IHSS care supplement. If the recipient disagrees with the county'
s determination concerning the need for the IHSS care supplement, the
recipient may request a hearing on that determination. However,
there will be no aid paid pending in that case.
(b) For purposes of subdivision (a), an individual is in serious
risk of out-of-home placement only if (1) the individual meets the
criteria for long-term care services as set forth in the Manual of
Criteria for Medi-Cal Authorization published by the State Department
of Health Services (January 1, 1982, last amended September, 1991),
or (2) the individual cannot summon emergency assistance.
(c) The county shall give a high priority to prompt screening of
these persons to determine their need for IHSS Care Supplement.
12301.06. (a) (1) Notwithstanding any other provision of law,
except as provided in subdivision (d), the department shall implement
a 3.6-percent reduction in hours of service to each recipient of
services under this article which shall be applied to the recipient's
hours as authorized pursuant to the most recent assessment. This
reduction shall be effective 90 days after the enactment of the act
that adds this section. The reduction required by this section shall
not preclude any reassessment to which a recipient would otherwise be
entitled. However, hours authorized pursuant to a reassessment shall
be subject to the 3.6-percent reduction required by this section.
(2) A recipient of services under this article may direct the
manner in which the reduction of hours is applied to the recipient's
previously authorized services.
(3) For those individuals who have a documented unmet need
excluding protective supervision because of the limitations on
authorized hours under Section 12303.4, the reduction shall be taken
first from the documented unmet need.
(b) (1) The reduction in hours of service pursuant to subdivision
(a) shall cease to be implemented on July 1, 2012.
(2) It is the intent of the Legislature that on July 1, 2012,
services shall be restored to the level authorized pursuant to the
recipient's most recent assessment, and increased by the previously
deducted 3.6 percent.
(c) The notice of action informing the recipient of the reduction
pursuant to subdivision (a) shall be mailed at least 30 days prior to
the reduction going into effect. The notice of action shall be
understandable to the recipient and translated into all languages
spoken by a substantial number of the public served by the In-Home
Supportive Services program, in accordance with Section 7295.2 of the
Government Code. The notice shall not contain any recipient
financial or confidential identifying information other than the
recipient's name, address, and Case Management Information and
Payroll System (CMIPS) client identification number, and shall
include, but not be limited to, all of the following information:
(1) The aggregate number of authorized hours before the reduction
pursuant to subdivision (a) and the aggregate number of authorized
hours after the reduction.
(2) That the recipient may direct the manner in which the
reduction of authorized hours is applied to the recipient's
previously authorized services.
(3) That the reduction of hours shall remain in effect until July
1, 2012, at which time service hours shall be restored to the
recipient's authorized level, based on the most recent assessment,
and increased by the previously deducted 3.6 percent.
(d) A recipient shall have all appeal rights otherwise provided
for under Chapter 7 (commencing with Section 10950) of Part 2.
(e) (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.
(f) This section shall become inoperative on July 1, 2012, and, as
of January 1, 2013, this section is repealed, unless a later enacted
statute that is enacted before January 1, 2013, deletes or extends
the dates on which it becomes inoperative and is repealed.
12301.1. (a) The department shall adopt regulations establishing a
uniform range of services available to all eligible recipients based
upon individual needs. The availability of services under these
regulations is subject to the provisions of Section 12301 and county
plans developed pursuant to Section 12302.
(b) The county welfare department shall assess each recipient's
continuing need for supportive services at varying intervals as
necessary, but at least once every 12 months.
(c) (1) Notwithstanding subdivision (b), at the county's option,
assessments may be extended, on a case-by-case basis, for up to six
months beyond the regular 12-month period, provided that the county
documents that all of the following conditions exist:
(A) The recipient has had at least one reassessment since the
initial program intake assessment.
(B) The recipient's living arrangement has not changed since the
last annual reassessment and the recipient lives with others, or has
regular meaningful contact with persons other than his or her service
provider.
(C) The recipient or, if the recipient is a minor, his or her
parent or legal guardian, or if incompetent, his or her conservator,
is able to satisfactorily direct the recipient's care.
(D) There has been no known change in the recipient's supportive
service needs within the previous 24 months.
(E) No reports have been made to, and there has been no
involvement of, an adult protective services agency or agencies since
the county last assessed the recipient.
(F) The recipient has not had a change in provider or providers
for at least six months.
(G) The recipient has not reported a change in his or her need for
supportive services that requires a reassessment.
(H) The recipient has not been hospitalized within the last three
months.
(2) If some, but not all, of the conditions specified in paragraph
(1) of subdivision (c) are met, the county may consider other
factors in determining whether an extended assessment interval is
appropriate, including, but not limited to, involvement in the
recipient's care of a social worker, case manager, or other similar
representative from another human services agency, such as a regional
center or county mental health program, or communications, or other
instructions from a physician or other licensed health care
professional that the recipient's medical condition is unlikely to
change.
(3) A county may reassess a recipient's need for services at a
time interval of less than 12 months from a recipient's initial
intake or last assessment if the county social worker has information
indicating that the recipient's need for services is expected to
decrease in less than 12 months.
(d) A county shall assess a recipient's need for supportive
services any time that the recipient notifies the county of a need to
adjust the supportive services hours authorized, or when there are
other indications or expectations of a change in circumstances
affecting the recipient's need for supportive services.
(e) (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,
until emergency regulations are filed with the Secretary of State,
the department may implement this section through all-county letters
or similar instructions from the director. The department shall adopt
emergency regulations implementing this section no later than
September 30, 2005, unless notification of a delay is made to the
Chair of the Joint Legislative Budget Committee prior to that date.
The notification shall include the reason for the delay, the current
status of the emergency regulations, a date by which the emergency
regulations shall be adopted, and a statement of need to continue use
of all-county letters or similar instructions. Under no
circumstances shall the adoption of emergency regulations be delayed,
or the use of all-county letters or similar instructions be
extended, beyond June 30, 2006.
(2) The adoption of regulations implementing this section shall be
deemed an emergency and necessary for the immediate preservation of
the public peace, health, safety, or general welfare. The emergency
regulations authorized by this section shall be exempt from review by
the Office of Administrative Law. The emergency regulations
authorized by this section shall be submitted to the Office of
Administrative Law for filing with the Secretary of State and shall
remain in effect for no more than 180 days by which time final
regulations shall be adopted. The department shall seek input from
the entities listed in Section 12305.72 when developing all-county
letters or similar instructions and the regulations.
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.
12301.2. (a) (1) The department, in consultation and coordination
with county welfare departments and in accordance with Section
12305.72, shall 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.
(2) The guidelines shall specify a range of time normally required
for each supportive service task necessary to ensure the health,
safety, and independence of the recipient. The guidelines shall also
provide criteria to assist county workers to determine when an
individual's service need falls outside the range of time provided in
the guidelines.
(3) In establishing the guidelines the department shall consider,
among other factors, adherence to universal precautions, existing
utilization patterns and outcomes associated with different levels of
utilization, and the need to avoid cost shifting to other government
program services. During the development of the guidelines the
department may seek advice from health professionals such as public
health nurses or physical or occupational therapists.
(b) A county shall use the statewide hourly task guidelines when
conducting an individual assessment or reassessment of an individual'
s need for supportive services.
(c) Subject to the limits imposed by Section 12303.4, counties
shall approve an amount of time different from the guideline amount
whenever the individual assessment indicates that the recipient's
needs require an amount of time that is outside the range provided
for in the guidelines. Whenever task times outside the range provided
in the guidelines are authorized the county shall document the need
for the authorized service level.
(d) The department shall adopt regulations to implement this
section by June 30, 2006. The department shall seek input from the
entities listed in Section 12305.72 when developing the regulations.
12301.21. (a) The department shall, in consultation and
coordination with the county welfare departments and in accordance
with Section 12305.72, develop for statewide use a standard form on
which to obtain certification by a physician or other appropriate
medical professional as determined by the department of a person's
need for protective supervision.
(b) At the time of an initial assessment at which a recipient's
potential need for protective supervision has been identified, the
county shall request that a person requesting protective supervision
submit the certification to the county. The county shall use the
certification in conjunction with other pertinent information to
assess the person's need for protective supervision. The
certification submitted by the person shall be considered as one
indicator of the need for protective supervision, but shall not be
determinative. In the event that the person fails to submit the
certification, the county shall make its determination of need based
upon other available evidence.
(c) At the time of reassessment of a person receiving authorized
protective supervision, the county shall determine the need to obtain
a new certification. The county may request another certification
from a recipient if determined necessary. The county shall document
the basis for its determination in the recipient's case file.
(d) (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,
until emergency regulations are filed with the Secretary of State,
the department may implement this section through all-county letters
or similar instructions from the director. The department shall adopt
emergency regulations implementing this chapter no later than
September 30, 2005, unless notification of a delay is made to the
Chair of the Joint Legislative Budget Committee prior to that date.
The notification shall include the reason for the delay, the current
status of the emergency regulations, a date by which the emergency
regulations shall be adopted, and a statement of need to continue use
of all-county letters or similar instructions. Under no
circumstances shall the adoption of emergency regulations be delayed,
or the use of all-county letters or similar instructions be
extended, beyond June 30, 2006.
(2) The adoption of regulations implementing this section shall be
deemed an emergency and necessary for the immediate preservation of
the public peace, health, safety, or general welfare. The emergency
regulations authorized by this section shall be exempt from review by
the Office of Administrative Law. The emergency regulations
authorized by this section shall be submitted to the Office of
Administrative Law for filing with the Secretary of State and shall
remain in effect for no more than 180 days by which time final
regulations shall be promulgated. The department shall seek input
from the entities listed in Section 12305.72 when developing
all-county letters or similar instructions and the regulations.
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.
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.
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.
12301.3. (a) Each county shall appoint an in-home supportive
services advisory committee that shall be comprised of not more than
11 individuals. No less 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 as recipients of services under this article.
(1) (A) In counties with fewer than 500 recipients of services
provided pursuant to this article or Section 14132.95, at least one
member of the advisory committee shall be a current or former
provider of in-home supportive services.
(B) In counties with 500 or more recipients of services provided
pursuant to this article or Section 14132.95, at least two members of
the advisory committee shall be a current or former provider of
in-home supportive services.
(2) Individuals who represent organizations that advocate for
people with disabilities or seniors may be appointed to committees
under this section.
(3) Individuals from community-based organizations that advocate
on behalf of home care employees may be appointed to committees under
this section.
(4) A county board of supervisors shall not appoint more than one
county employee as a member of the advisory committee, but may
designate any county employee to provide ongoing advice and support
to the advisory committee.
(b) Prior to the appointment of members to a committee required by
subdivision (a), the county board of supervisors shall solicit
recommendations for qualified members through a fair and open process
that includes the provision of reasonable written notice to, and
reasonable response time by, members of the general public and
interested persons and organizations.
(c) The advisory committee shall submit recommendations to the
county board of supervisors on the preferred mode or modes of service
to be utilized in the county for in-home supportive services.
(d) Any county that has established a governing body, as provided
in subdivision (b) of Section 12301.6, prior to July 1, 2000, shall
not be required to comply with the composition requirements of
subdivision (a) and shall be deemed to be in compliance with this
section.
12301.4. (a) Each advisory committee established pursuant to
Section 12301.3 or 12301.6 shall provide ongoing advice and
recommendations regarding in-home supportive services to the county
board of supervisors, any administrative body in the county that is
related to the delivery and administration of in-home supportive
services, and the governing body and administrative agency of the
public authority, nonprofit consortium, contractor, and public
employees.
(b) Each county shall be eligible to receive state reimbursements
of administrative costs for only one advisory committee and shall
comply with the requirements of subdivision (e) of Section 12302.25.
12301.5. The department may secure to the extent feasible such
in-home supportive and other health services for persons eligible
under this article to which they are entitled under the Medi-Cal Act
(Chapter 7 (commencing with Section 14000) of this part).
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.
(iii) Commencing 90 days after the effective date of the act that
adds Section 12305.87, and upon notice from the Department of
Justice that an applicant who is subject to the provisions of that
section has been convicted of, or incarcerated following conviction
for, an offense described in subdivision (b) of that section, the
public authority or nonprofit consortium shall deny the applicant's
request to become a provider of supportive services to any recipient
of in-home supportive services, subject to the individual waiver and
exception processes described in that section. An applicant who is
denied on the basis of Section 12305.87 shall be informed by the
public authority or nonprofit consortium of the individual waiver and
exception processes described in that section.
(B) (i) 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.
(F) A nonprofit consortium or a public authority authorized to
secure a criminal background check clearance pursuant to this section
shall accept a clearance for an applicant described in clause (i) of
subparagraph (A) who has been deemed eligible by another nonprofit
consortium, public authority, or county with criminal background
check authority pursuant to either Section 12305.86 or this section,
to receive payment for providing services pursuant to this article.
Existence of a clearance shall be determined by verification through
the case management, information, and payrolling system, that another
county, nonprofit consortium, or public authority with criminal
background check authority pursuant to Section 12305.86 or this
section has deemed the current or prospective provider to be eligible
to receive payment for providing services pursuant to this article.
(3) Establishment of a referral system under which in-home
supportive services personnel shall be referred to recipients.
(4) Providing for training for providers and recipients.
(5) (A) Performing any other functions related to the delivery of
in-home supportive services.
(B) (i) Upon request of a recipient of in-home supportive services
pursuant to this chapter, or a recipient of personal care services
under the Medi-Cal program pursuant to Section 14132.95, a public
authority or nonprofit consortium may provide a criminal background
check on a nonregistry applicant or provider from the Department of
Justice, in accordance with clause (i) of subparagraph (A) of
paragraph (2) of subdivision (e). If the person who is the subject of
the criminal background check is not hired or is terminated because
of the information contained in the criminal background report, the
provisions of subparagraph (B) of paragraph (2) of subdivision (e)
shall apply.
(ii) A recipient of in-home supportive services pursuant to this
chapter or a recipient of personal care services under the Medi-Cal
program may elect to employ an individual as their service provider
notwithstanding the individual's record of previous criminal
convictions, unless those convictions include any of the offenses
specified in Section 12305.81.
(6) Ensuring that the requirements of the personal care option
pursuant to Subchapter 19 (commencing with Section 1396) of Chapter 7
of Title 42 of the United States Code are met.
(f) (1) Any nonprofit consortium contracting with a county
pursuant to this section or any public authority created pursuant to
this section shall be deemed not to be the employer of in-home
supportive services personnel referred to recipients under this
section for purposes of liability due to the negligence or
intentional torts of the in-home supportive services personnel.
(2) In no case shall a nonprofit consortium contracting with a
county pursuant to this section or any public authority created
pursuant to this section be held liable for action or omission of any
in-home supportive services personnel whom the nonprofit consortium
or public authority did not list on its registry or otherwise refer
to a recipient.
(3) Counties and the state shall be immune from any liability
resulting from their implementation of this section in the
administration of the In-Home Supportive Services program. Any
obligation of the public authority or consortium pursuant to this
section, whether statutory, contractual, or otherwise, shall be the
obligation solely of the public authority or nonprofit consortium,
and shall not be the obligation of the county or state.
(g) Any nonprofit consortium contracting with a county pursuant to
this section shall ensure that it has a governing body that complies
with the requirements of subparagraph (B) of paragraph (3) of
subdivision (b) or an advisory committee that complies with
subparagraphs (B) and (C) of paragraph (3) of subdivision (b).
(h) Recipients of services under this section may elect to receive
services from in-home supportive services personnel who are not
referred to them by the public authority or nonprofit consortium.
Those personnel shall be referred to the public authority or
nonprofit consortium for the purposes of wages, benefits, and other
terms and conditions of employment.
(i) (1) Nothing in this section shall be construed to affect the
state's responsibility with respect to the state payroll system,
unemployment insurance, or workers' compensation and other provisions
of Section 12302.2 for providers of in-home supportive services.
(2) The Controller shall make any deductions from the wages of
in-home supportive services personnel, who are employees of a public
authority pursuant to paragraph (1) of subdivision (c), that are
agreed to by that public authority in collective bargaining with the
designated representative of the in-home supportive services
personnel pursuant to Chapter 10 (commencing with Section 3500) of
Division 4 of Title 1 of the Government Code and transfer the
deducted funds as directed in that agreement.
(3) Any county that elects to provide in-home supportive services
pursuant to this section shall be responsible for any increased costs
to the in-home supportive services case management, information, and
payrolling system attributable to that election. The department
shall collaborate with any county that elects to provide in-home
supportive services pursuant to this section prior to implementing
the amount of financial obligation for which the county shall be
responsible.
(j) To the extent permitted by federal law, personal care option
funds, obtained pursuant to Subchapter 19 (commencing with Section
1396) of Chapter 7 of Title 42 of the United States Code, along with
matching funds using the state and county sharing ratio established
in subdivision (c) of Section 12306, or any other funds that are
obtained pursuant to Subchapter 19 (commencing with Section 1396) of
Chapter 7 of Title 42 of the United States Code, may be used to
establish and operate an entity authorized by this section.
(k) Notwithstanding any other 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.
12301.7. The annual administrative cost for any public authority or
nonprofit consortium created pursuant to Section 12301.6, exclusive
of any increase in provider wages or benefits or employer taxes when
negotiated or agreed to by the public authority or nonprofit
consortium, shall be shared by the state and the counties as
prescribed in Section 12306.
12301.8. (a) (1) A public authority or nonprofit consortium
established pursuant to Section 12301.6, upon the request of an aged
or disabled adult or that individual's authorized representative, may
assist an employer, as defined in paragraph (2), in obtaining a
criminal background check conducted by the Department of Justice, as
authorized pursuant to Section 15660, of a provider, as described in
paragraph (3).
(2) For purposes of this section, an "employer" means an aged or
disabled adult, or that individual's authorized representative, who
is ineligible for benefits under this chapter and who receives care
by a provider as described in paragraph (3).
(3) For purposes of this section, a "provider" means a person who
is unlicensed and provides nonmedical domestic or personal care to an
aged or disabled adult who is ineligible to receive benefits under
this chapter, in the adult's own home.
(b) A public authority or nonprofit consortium may recover the
costs of administering this section, including the cost to the
Department of Justice for processing the criminal background check,
from the individual making the request, as described in subdivision
(a).
(c) No General Fund moneys shall be used to implement this
section.
12302. Each county is obligated to ensure that services are
provided to all eligible recipients during each month of the year in
accordance with the county plan.
In order to implement such a plan, an individual county may hire
homemakers and other in-home supportive personnel in accordance with
established county civil service requirements or merit system
requirements for those counties not having civil service, or may
contract with a city, county, or city and county agency, a local
health district, a voluntary nonprofit agency, a proprietary agency,
or an individual or make direct payment to a recipient for the
purchase of services.
County plans are effective upon submission to the department. In
reviewing county plans the department shall assure that plans are in
compliance with provisions of this article including compliance with
Section 12301. In the event the department finds a county plan is not
in compliance it shall take appropriate action to assure compliance.
The department shall monitor the actual monthly expenditures where
available for services to assure compliance with the county plans.
If the county's expenditure pattern is not consistent with the plan,
the department shall require the county to amend the plan.
12302.1. (a) Contracts entered into by a county under Section 12302
shall be for terms not exceeding three years. In the event of a
three-year contract, the county, at the end of the first contract
term, may renew the contract for a second term not exceeding one
year. The rate of reimbursement shall be negotiated consistent with
regulations promulgated by the State Department of Social Services.
For any extended contract, the rate shall reflect, but is not limited
to, the following financial considerations:
(1) Actual expenditures by the contractor as documented during the
first contract term and approved by the state.
(2) Changes in federal, state, or county program requirements.
(3) Federal and state minimum wage and contractual step merit
increases.
(4) Statutory taxes.
(5) Insurance costs.
(6) Reasonable costs which have been approved by the county
department of social services, as long as those costs do not increase
unreimbursed county expenditures or lead to a reduction in client
services, and those costs can be funded within the maximum allowable
rates set by the department for in-home supportive services contracts
and the county's state allocation for in-home supportive services.
(7) Other reasonable costs over which the contracting parties have
no control.
(b) (1) Except as provided in paragraph (2), the purchase of
services regulations adopted by the department that govern county
welfare departments shall also govern acceptable in-home supportive
services contracting, including the methods used to advertise,
procure, select, and award the contracts, and the procedures used to
amend, renew, or extend an existing contract with the same
contractor, including, in addition to rate changes, any other change
in other terms of the contract. In no case shall the department's
regulations governing in-home supportive services contracting
procedures differ from the contract procedures specified in the
department's purchase of service regulations for other services
purchased by county welfare departments, except as required by
federal law.
(2) The department may, through regulation, require until July 1,
2000, the prior review of all bid and contract documents for managed
care contracts under Section 12302.7.
12302.2. (a) (1) If the state or a county makes or provides for
direct payment to a provider chosen by a recipient or to the
recipient for the purchase of in-home supportive services, the
department shall perform or assure the performance of all rights,
duties and obligations of the recipient relating to those services as
required for purposes of unemployment compensation, unemployment
compensation disability benefits, workers' compensation, federal and
state income tax, and federal old-age survivors and disability
insurance benefits. Those rights, duties, and obligations include,
but are not limited to, registration and obtaining employer account
numbers, providing information, notices, and reports, making
applications and returns, and withholding in trust from the payments
made to or on behalf of a recipient amounts to be withheld from the
wages of the provider by the recipient as an employer, including the
sales tax extended to support services by Article 4 (commencing with
Section 6150) of Chapter 2 of Part 1 of Division 2 of the Revenue and
Taxation Code, and transmitting those amounts along with amounts
required for all contributions, premiums, and taxes payable by the
recipient as the employer to the appropriate person or state or
federal agency. The department may assure the performance of any or
all of these rights, duties, and obligations by contract with any
person, or any public or private agency.
(2) Contributions, premiums, and taxes shall be paid or
transmitted on the recipient's behalf as the employer for any period
commencing on or after January 1, 1978, except that contributions,
premiums, and taxes for federal and state income taxes and federal
old-age, survivors and disability insurance contributions shall be
paid or transmitted pursuant to this section commencing with the
first full month that begins 90 days after the effective date of this
section.
(3) Contributions, premiums, and taxes paid or transmitted on the
recipient's behalf for unemployment compensation, workers'
compensation, and the employer's share of federal old-age survivors
and disability insurance benefits shall be payable in addition to the
maximum monthly amount established pursuant to Section 12303.5 or
subdivision (a) of Section 12304 or other amount payable to or on
behalf of a recipient. Contributions, premiums, or taxes resulting
from liability incurred by the recipient as employer for unemployment
compensation, workers' compensation, and federal old-age, survivors
and disability insurance benefits with respect to any period
commencing on or after January 1, 1978, and ending on or before the
effective date of this section shall also be payable in addition to
the maximum monthly amount established pursuant to Section 12303.5 or
subdivision (a) of Section 12304 or other amount payable to or on
behalf of the recipient. Nothing in this section shall be construed
to permit any interference with the recipient's right to select the
provider of services or to authorize a charge for administrative
costs against any amount payable to or on behalf of a recipient.
(b) If the state makes or provides for direct payment to a
provider chosen by a recipient, the Controller shall make any
deductions from the wages of in-home supportive services personnel
that are authorized by Sections 1152 and 1153 of the Government Code,
as limited by Section 3515.6 of the Government Code, and for the
sales tax extended to support services by Article 4 (commencing with
Section 6150) of Chapter 2 of Part 1 of Division 2 of the Revenue and
Taxation Code.
(c) Funding for the costs of administering this section and for
contributions, premiums, and taxes paid or transmitted on the
recipient's behalf as an employer pursuant to this section shall
qualify, where possible, for the maximum federal reimbursement. To
the extent that federal funds are inadequate, notwithstanding Section
12306, the state shall provide funding for the purposes of this
section.
12302.21. (a) For purposes of providing cost-efficient workers'
compensation coverage for in-home supportive services providers under
this article, the department shall assume responsibility for
providing workers' compensation coverage for employees of nonprofit
agencies and proprietary agencies who provide in-home supportive
services pursuant to contracts with counties. The workers'
compensation coverage provided for these employees shall be provided
on the same terms as provided to providers under Section 12302.2 and
12302.5.
(b) A county that has existing contracts with nonprofit agencies
or proprietary agencies whose employees will be provided workers'
compensation coverage by the department pursuant to subdivision (a),
shall reduce the contract hourly rate by fifty cents ($0.50) per
hour, effective on the date that the department implements this
section.
12302.25. (a) On or before January 1, 2003, each county shall act
as, or establish, an employer for in-home supportive service
providers under Section 12302.2 for the purposes of Chapter 10
(commencing with Section 3500) of Division 4 of Title 1 of the
Government Code and other applicable state or federal laws. Each
county may utilize a public authority or nonprofit consortium as
authorized under Section 12301.6, the contract mode as authorized
under Sections 12302 and 12302.1, county administration of the
individual provider mode as authorized under Sections 12302 and
12302.2 for purposes of acting as, or providing, an employer under
Chapter 10 (commencing with Section 3500) of Division 4 of Title 1 of
the Government Code, county civil service personnel as authorized
under Section 12302, or mixed modes of service authorized pursuant to
this article and may establish regional agreements in establishing
an employer for purposes of this subdivision for providers of in-home
supportive services. Within 30 days of the effective date of this
section, the department shall develop a timetable for implementation
of this subdivision to ensure orderly compliance by counties.
Recipients of in-home supportive services shall retain the right to
choose the individuals that provide their care and to recruit,
select, train, reject, or change any provider under the contract mode
or to hire, fire, train, and supervise any provider under any other
mode of service. Upon request of a recipient, and in addition to a
county's selected metho
