BILL NUMBER: AB 211 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Gomez
(Principal coauthors: Assembly Members Alejo and Roger Hernández)
(Coauthors: Assembly Members Calderon, Chiu, Chu, Gipson, Levine,
Medina, Rodriguez, Thurmond, and Weber)
(Coauthors: Senators Cannella and Hall)
FEBRUARY 2, 2015
An act to amend Sections 110003, 110005, 110006, 110007, 110008,
110009, 110011, and 110021 of, and to amend and repeal Section 6253.2
of, the Government Code, to amend Sections 12300.5, 12300.7,
12301.6, and 14186.35 of, to amend and repeal Sections 10101.1,
12306, and 12306.1 of, and to repeal Section 12302.25 of, the Welfare
and Institutions Code, and to amend Section 34 of Chapter 37 of the
Statutes of 2013, relating to human services.
LEGISLATIVE COUNSEL'S DIGEST
AB 211, as introduced, Gomez. In-home supportive services.
Existing law establishes the county-administered In-Home
Supportive Services (IHSS) program, under which qualified aged,
blind, and disabled persons are provided with services in order to
permit them to remain in their own homes and avoid
institutionalization. Existing law establishes the Medi-Cal program,
which is administered by the State Department of Health Care
Services, under which qualified low-income individuals receive health
care services. The Medi-Cal program is, in part, governed and funded
by federal Medicaid program provisions.
Existing law establishes, as part of the Coordinated Care
Initiative, the In-Home Supportive Services Employer-Employee
Relations Act, which serves to resolve disputes regarding wages,
benefits, and other terms and conditions of employment between the
California In-Home Supportive Services Authority (Statewide
Authority) and recognized employee organizations providing in-home
supportive services. Existing law establishes the Statewide Authority
and requires the authority to be the entity authorized to meet and
confer in good faith regarding wages, benefits, and other terms and
conditions of employment with representatives of recognized employee
organizations for any individual provider who is employed by a
recipient of supportive services.
Existing law provides, as part of the Coordinated Care Initiative,
that IHSS is a Medi-Cal benefit available through managed care
health plans in specified counties. Existing law requires enrollment
of eligible Medi-Cal beneficiaries into managed care pursuant to a
specified demonstration project or other provisions, including
managed care for long-term services and supports, as one of the
conditions required to be completed before the Statewide Authority
assumes specified responsibilities. Existing law requires the
Statewide Authority, no sooner than March 1, 2013, to assume
specified responsibilities in a county upon notification by the
Director of Health Care Services that the enrollment of eligible
Medi-Cal beneficiaries described in specified provisions of law has
been completed in that county. Under existing law, the date of
assumption of these responsibilities by the Statewide Authority is
known as the county implementation date.
This bill would, instead, make the implementation date January 1,
2016, would delete the reference to the "county" implementation date,
and would make conforming changes.
Existing law conditions implementation of the Coordinated Care
Initiative, as defined, on whether the Director of Finance estimates
that the Coordinated Care Initiative will generate net General Fund
savings, as specified. Existing law, with certain exceptions,
specifies those provisions of law that are within the scope of the
initiative to become inoperative if this condition is not met.
This bill would modify the definition of the Coordinate Care
Initiative for the purposes of determining which provisions become
inoperative if the condition is not met, and exclude, among others,
those provisions that establish the In-Home Supportive Services
Employer-Employee Relations Act; establish the Statewide Authority
and determine the duties of, and when those duties are assumed by,
the authority; establish the IHSS Fund, which is used to fund the
Statewide Authority; and require all counties, commencing July 1,
2012, to have a County IHSS Maintenance of Effort (MOE) and to pay
the County IHSS MOE instead of paying the nonfederal share of IHSS
costs, as specified. The bill would make conforming changes.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 6253.2 of the Government Code, as amended by
Section 1 of Chapter 37 of the Statutes of 2013, is amended to read:
6253.2. (a) Notwithstanding any other provision of this chapter
to the contrary, information regarding persons paid by the state to
provide in-home supportive services pursuant to Article 7 (commencing
with Section 12300) of Chapter 3 of Part 3 of Division 9 of the
Welfare and Institutions Code, or services provided pursuant to
Section 14132.95, 14132.952, or 14132.956 of the Welfare and
Institutions Code, is not subject to public disclosure pursuant to
this chapter, except as provided in subdivision (b).
(b) Copies of names, addresses, and telephone numbers of persons
described in subdivision (a) shall be made available, upon request,
to an exclusive bargaining agent and to any labor organization
seeking representation rights pursuant to Section 12301.6 or
12302.25 of the Welfare and Institutions Code or
the In-Home Supportive Services Employer-Employee Relations
Act (Title 23 (commencing with Section 110000)). This information
shall not be used by the receiving entity for any purpose other than
the employee organizing, representation, and assistance activities of
the labor organization.
(c) This section applies solely to individuals who provide
services under the In-Home Supportive Services Program (Article 7
(commencing with Section 12300) of Chapter 3 of Part 3 of Division 9
of the Welfare and Institutions Code), the Personal Care Services
Program pursuant to Section 14132.95 of the Welfare and Institutions
Code, the In-Home Supportive Services Plus Option pursuant to Section
14132.952 of the Welfare and Institutions Code, or the Community
First Choice Option pursuant to Section 14132.956 of the Welfare and
Institutions Code.
(d) Nothing in this section is intended to alter or shall be
interpreted to alter the rights of parties under the In-Home
Supportive Services Employer-Employee Relations Act (Title 23
(commencing with Section 110000)) or any other labor relations law.
(e) This section shall be inoperative if the Coordinated Care
Initiative becomes inoperative pursuant to Section 34 of the act that
added this subdivision.
SEC. 2. Section 6253.2 of the Government Code, as amended by
Section 2 of Chapter 37 of the Statutes of 2013, is repealed.
6253.2. (a) Notwithstanding any other provision of this chapter
to the contrary, information regarding persons paid by the state to
provide in-home supportive services pursuant to Article 7 (commencing
with Section 12300) of Chapter 3 of Part 3 of Division 9 of the
Welfare and Institutions Code or personal care services pursuant to
Section 14132.95 of the Welfare and Institutions Code, is not subject
to public disclosure pursuant to this chapter, except as provided in
subdivision (b).
(b) Copies of names, addresses, and telephone numbers of persons
described in subdivision (a) shall be made available, upon request,
to an exclusive bargaining agent and to any labor organization
seeking representation rights pursuant to subdivision (c) of Section
12301.6 or Section 12302.25 of the Welfare and Institutions Code or
Chapter 10 (commencing with Section 3500) of Division 4 of Title 1.
This information shall not be used by the receiving entity for any
purpose other than the employee organizing, representation, and
assistance activities of the labor organization.
(c) This section applies solely to individuals who provide
services under the In-Home Supportive Services Program (Article 7
(commencing with Section 12300) of Chapter 3 of Part 3 of Division 9
of the Welfare and Institutions Code) or the Personal Care Services
Program pursuant to Section 14132.95 of the Welfare and Institutions
Code.
(d) Nothing in this section is intended to alter or shall be
interpreted to alter the rights of parties under the
Meyers-Milias-Brown Act (Chapter 10 (commencing with Section 3500) of
Division 4) or any other labor relations law.
(e) This section shall be operative only if Section 1 of the act
that added this subdivision becomes inoperative pursuant to
subdivision (e) of that Section 1.
SEC. 3. Section 110003 of the Government Code is amended to read:
110003. As used in this title:
(a) "Board" means the Public Employment Relations Board
established pursuant to Section 3541.
(b) "Employee" or "individual provider" means any person
authorized to provide in-home supportive services pursuant to Article
7 (commencing with Section 12300) of Chapter 3 of Part 3 of Division
9 of the Welfare and Institutions Code, and Sections 14132.95,
14132.952, and 14132.956 of the Welfare and Institutions Code,
pursuant to the individual provider mode, as referenced in Section
12302.2 of the Welfare and Institutions Code. As used in this title,
"employee" or "individual provider" does not include any person
providing in-home supportive services pursuant to the county-employed
homemaker mode or the contractor mode, as authorized in Section
12302 of the Welfare and Institutions Code. Individual providers
shall not be deemed to be employees of the Statewide Authority for
any other purpose, except as expressly set forth in this title.
(c) "Employee organization" means an organization that includes
employees, as defined in subdivision (b), and that has as one of its
primary purposes representing those employees in their relations with
the Statewide Authority.
(d) "Employer" means, for the purposes of collective bargaining,
the Statewide Authority established pursuant to Section 6531.5. The
in-home supportive services recipient shall be the employer of an
individual in-home supportive services provider with the
unconditional and exclusive right to hire, fire, and supervise his or
her provider.
(e) "In-home supportive services" or "IHSS" means services
provided pursuant to Article 7 (commencing with Section 12300) of
Chapter 3 of Part 3 of Division 9 of the Welfare and Institutions
Code, and Sections 14132.95, 14132.952, and 14132.956 of the Welfare
and Institutions Code.
(f) "In-home supportive services recipient" means the individual
who receives the in-home supportive services provided by the
individual provider. The in-home supportive services recipient is the
employer for the purposes of hiring, firing, and supervising his or
her respective individual provider.
(g) "Mediation" means effort by an impartial third party to assist
in reconciling a dispute regarding wages, benefits, and other terms
and conditions of employment, as defined in Section 110023, between
representatives of the employer and the recognized employee
organization or recognized employee organizations through
interpretation, suggestion, and advice.
(h) "Meet and confer in good faith" means that the employer, or
those representatives as it may designate, and representatives of
recognized employee organizations, shall have the mutual obligation
personally to meet and confer promptly upon request by either party
and continue for a reasonable period of time in order to exchange
freely information, opinions, and proposals, and to endeavor to reach
agreement on matters within the scope of representation prior to the
adoption of the annual Budget Act.
(i) "Predecessor agency" means a county or an entity established
pursuant to Section 12301.6 of the Welfare and Institutions Code
before the effective date of this title.
January 1, 2016.
(j) "Recognized employee organization" means an employee
organization that has been formally acknowledged as follows:
(1) Before the county implementation date as
described in subdivision (a) of Section 12300.7 of the Welfare and
Institutions Code, by a county or an entity established pursuant to
Section 12301.6 of the Welfare and Institutions Code, as the
representative of individual providers in its jurisdiction.
(2) On or after the county implementation date
as described in subdivision (a) of Section 12300.7 of the Welfare and
Institutions Code, by the Statewide Authority, as the representative
of individual providers subject to this title.
(k) "Statewide Authority" means the California In-Home Supportive
Services Authority established pursuant to Section 6531.5.
SEC. 4. Section 110005 of the Government Code is amended to read:
110005. For the purposes of this title, the county
implementation date is defined in subdivision (a) of
Section 12300.7 of the Welfare and Institutions Code.
SEC. 5. Section 110006 of the Government Code is amended to read:
110006. For purposes of collective bargaining, and as expressly
set forth in subdivision (d) of Section 110003, the Statewide
Authority is deemed to be the employer of record of individual
providers in each county as of the county
implementation date. In-home supportive services recipients shall
retain the right to hire, fire, and supervise the work of the
individual providers providing services to them.
SEC. 6. Section 110007 of the Government Code is amended to read:
110007. Individual providers employed by any predecessor agency
as of the county implementation date shall retain
employee status and shall not be required by the Statewide Authority
to requalify to receive payment for providing services pursuant to
Article 7 (commencing with Section 12300) of Chapter 3 of Part 3 of
Division 9 of the Welfare and Institutions Code. In the same manner
as set forth in subdivision (e) of Section 12305.86 of the Welfare
and Institutions Code, the Statewide Authority shall accept a
clearance that was obtained or accepted by any predecessor agency
pursuant to Article 7 (commencing with Section 12300) of Chapter 3 of
Part 3 of Division 9 of the Welfare and Institutions Code. Existence
of a clearance shall be determined by verification through the case
management, information, and payroll system of the predecessor agency
that the predecessor agency has deemed the provider to be eligible
to receive payment for providing services pursuant to Article 7
(commencing with Section 12300) of Chapter 3 of Part 3 of Division 9
of the Welfare and Institutions Code.
SEC. 7. Section 110008 of the Government Code is amended to read:
110008. On the county implementation date,
separate bargaining units shall be created consistent with the
bargaining units that have been recognized by predecessor agencies.
Bargaining units consisting of employees in a single county shall be
the only appropriate unit for collective bargaining under this title.
In those counties where no recognized employee organization exists
as of the county implementation date, a bargaining
unit consisting of all employees in that county shall be deemed an
appropriate unit for collective bargaining.
SEC. 8. Section 110009 of the Government Code is amended to read:
110009. If, on the county implementation date,
individual providers are represented by a recognized employee
organization, the Statewide Authority shall be deemed the successor
employer of the predecessor agency for the purposes of negotiating a
collective bargaining agreement, and shall be obligated to recognize
and to meet and confer in good faith with the recognized employee
organization on all matters within the scope of representation, as
defined in Section 110023, as to those individual providers.
SEC. 9. Section 110011 of the Government Code is amended to read:
110011. (a) Except as otherwise expressly provided in this title,
the enactment of this title shall not be a cause for the employer or
any predecessor agency to modify or eliminate any existing
memorandum of agreement or understanding, or to modify existing
wages, benefits, or other terms and conditions of employment. Except
to the extent set forth in this title, the enactment of this title
shall not prevent the modification of existing wages, benefits, or
terms and conditions of employment through the meet and confer in
good faith process or, in those situations in which the employees are
not represented by a recognized employee organization, through
appropriate procedures.
(b) On the county implementation date, subject
to Section 12306.15 of the Welfare and Institutions Code, the
Statewide Authority shall assume the predecessor agency's rights and
obligations under any memorandum of understanding or agreement
between the predecessor agency and a recognized employee organization
that is in effect on the county implementation
date for the duration thereof. Absent mutual consent to reopen, the
terms of any transferred memorandum of understanding or agreement
shall continue until the memorandum of understanding or agreement has
expired. If a memorandum of understanding or agreement between a
recognized employee organization and a predecessor agency has expired
and has not been replaced by a successor memorandum of understanding
or agreement as of the county implementation
date, the Statewide Authority shall assume the obligation to meet and
confer in good faith with the recognized employee organization.
(c) Notwithstanding any other provision of law, except to the
extent set forth in this chapter and as limited by Section 110023,
the terms and conditions of any memorandum of understanding or
agreement between a predecessor agency and a recognized employee
organization in effect on the county
implementation date shall not be reduced, except by mutual agreement
between the recognized employee organization and the Statewide
Authority.
(d) Nothing in this title shall be construed to relieve any
predecessor agency of its obligation to meet and confer in good faith
with a recognized employee organization pursuant to the
Meyers-Milias-Brown Act (Chapter 10 (commencing with Section 3500) of
Division 4 of Title 1) until the county
implementation date. Nothing in this title shall permit the
predecessor agency to meet and confer after the Statewide Authority
assumes the predecessor agency's rights and obligations on the
county implementation date.
(e) With the exception of all economic terms covered by Section
12306.15 of the Welfare and Institutions Code and notwithstanding any
other provision of law, beginning July 1, 2012, and ending on the
county implementation date as set forth in
subdivision (a) of Section 12300.7 of the Welfare and Institutions
Code, any alterations or modifications to either current or expired
memoranda of understanding that were in effect on July 1, 2012, and
any newly negotiated memoranda of understanding or agreements reached
after July 1, 2012, shall be submitted for review to the State
Department of Social Services, hereafter referred to as the
department. This review requirement shall
not begin until a county commences transition pursuant to
subdivision (g) of Section 14132.275 of the Welfare and Institutions
Code, and shall be performed by the department until the
Statewide Authority becomes operational, after which date the
Statewide Authority shall continue to perform this review
requirement. review. If, upon review, but not
later than 180 days after before the
county commences transition pursuant to subdivision (g) of
Section 14132.275 of implementation date, the
Welfare and Institutions Code, the department or
Statewide Authority reasonably determines that there are one or more
newly negotiated or amended noneconomic terms in the memorandum of
understanding or agreement to which it objects for a bona fide
business-related reason, the department or Statewide Authority shall
provide written notice to the signatory recognized employee
organization of each objection and the reason for it. Upon demand
from the recognized employee organization, the department, or the
Statewide Authority, those parties shall meet and confer regarding
the objection and endeavor to reach agreement prior to the
county implementation date. If an agreement is reached, it
shall not become effective prior to the county
implementation date. If an agreement is not reached by the
county implementation date, the objectionable language is
deemed inoperable as of the county implementation
date. All terms to which no objection is made shall be deemed
accepted by the Statewide Authority. If the Statewide Authority or
the department fails to provide the 180 days' notice of objection, it
shall be deemed waived.
SEC. 10. Section 110021 of the Government Code is amended to read:
110021. If a predecessor agency is party to any memorandum of
understanding or agreement with any bargaining unit that includes
individual providers that contains an agency shop provision as of the
effective date of this title, the predecessor agency and the
employer shall be obligated to honor the terms of the agency shop
provision, including indemnification provisions, if any, for the
duration of the memorandum of understanding or agreement, and until
the adoption of a successor memorandum of understanding or agreement.
However, upon the request of a recognized employee organization, an
agency shop provision in effect on the county
implementation date may be reopened for the sole purpose of
renegotiating the terms of that provision in accordance with this
title. The implementation of this title shall not be a cause for a
new agency shop election.
SEC. 11. Section 10101.1 of the Welfare and Institutions Code, as
amended by Section 5 of Chapter 37 of the Statutes of 2013, is
amended to read:
10101.1. (a) For the 1991-92 fiscal year and each fiscal year
thereafter, the state's share of the costs of the county services
block grant and the in-home supportive services administration
requirements shall be 70 percent of the actual nonfederal
expenditures or the amount appropriated by the Legislature for that
purpose, whichever is less.
(b) Federal funds received under Title 20 of the federal Social
Security Act (42 U.S.C. Sec. 1397 et seq.) and appropriated by the
Legislature for the county services block grant and the in-home
supportive services administration shall be considered part of the
state share of cost and not part of the federal expenditures for this
purpose.
(c) For the period during which Section 12306.15 is operative,
each county's share of the nonfederal costs of the county services
block grant and the in-home supportive services administration
requirements as specified in subdivision (a) shall remain, but the
County IHSS Maintenance of Effort pursuant to Section 12306.15 shall
be in lieu of that share.
(d) This section shall be inoperative if the Coordinated Care
Initiative becomes inoperative pursuant to Section 34 of the act that
added this subdivision.
SEC. 12. Section 10101.1 of the Welfare and Institutions Code, as
amended by Section 6 of Chapter 37 of the Statutes of 2013, is
repealed.
10101.1. (a) For the 1991-92 fiscal year and each fiscal year
thereafter, the state's share of the costs of the county services
block grant and the in-home supportive services administration
requirements shall be 70 percent of the actual nonfederal
expenditures or the amount appropriated by the Legislature for that
purpose, whichever is less.
(b) Federal funds received under Title 20 of the federal Social
Security Act (42 U.S.C. Sec. 1397 et seq.) and appropriated by the
Legislature for the county services block grant and the in-home
supportive services administration shall be considered part of the
state share of cost and not part of the federal expenditures for this
purpose.
(c) This section shall be operative only if Section 5 of the act
that added this subdivision becomes inoperative pursuant to
subdivision (d) of that Section 5.
SEC. 13. Section 12300.5 of the Welfare and Institutions Code is
amended to read:
12300.5. (a) The California In-Home Supportive Services
Authority, hereafter referred to as the Statewide Authority,
established pursuant to Section 6531.5 of the Government Code, shall
be the entity authorized to meet and confer in good faith regarding
wages, benefits, and other terms and conditions of employment in
accordance with Title 23 (commencing with Section 110000) of the
Government Code, with representatives of recognized employee
organizations for any individual provider who is employed by a
recipient of in-home supportive services described in Section 12300
after the county implementation date as described
in subdivision (a) of Section 12300.7.
(b) The Statewide Authority and the Department of Human Resources
and other state departments may enter into a memorandum of
understanding or other agreement to have the Department of Human
Resources meet and confer on behalf of the Statewide Authority for
the purposes described in subdivision (a) or to provide the Statewide
Authority with other services, including, but not limited to,
administrative and legal services.
(c) The state, the Statewide Authority, or any county that has met
the conditions in Section 12300.7 shall not be deemed to be the
employer of any individual provider who is employed by a recipient of
in-home supportive services as described in Section 12300 for
purposes of liability due to the negligence or intentional torts of
the individual provider.
SEC. 14. Section 12300.7 of the Welfare and Institutions Code is
amended to read:
12300.7. (a) No sooner than March 1,
2013, On January 1, 2016, the
California In-Home Supportive Services Authority shall assume the
responsibilities set forth in Title 23 (commencing with Section
110000) of the Government Code in a county or city and
county upon notification by the Director of Health Care Services that
the enrollment of eligible Medi-Cal beneficiaries described in
Section 14132.275 or 14182.16, or Article 5.7 (commencing with
Section 14186) of Chapter 7 has been completed in that county or city
and county. Code.
(b) A county or city and county, subject to subdivision
(a) and upon notification from the Director of Health Care Services,
county shall do one or both of the following:
(1) Have the entity that performed functions set forth in the
county ordinance or contract in effect at the time of the
notification pursuant prior to
subdivision (a) January 1, 2016, and established
pursuant to Section 12301.6 12301.6,
continue to perform those functions, excluding subdivision
(c) of that section. except the functions described in
subdivision (a).
(2) Assume the functions performed by the entity ,
at the time of the notification pursuant
described in paragraph (1) prior to subdivision
(a), January 1, 2016, pursuant to Section
12301.6, excluding subdivision (c) of that section.
except the functions described in subdivision (a).
(c) If a county or city and county assumes the functions described
in paragraph (2) of subdivision (b), it may establish or contract
with an entity for the performance of any or all of the functions
assumed. In-home supportive services recipients shall retain the
right to hire, fire, and supervise the work of the individual
providers providing services to them.
SEC. 15. Section 12301.6 of the Welfare and Institutions Code is
amended to read:
12301.6. (a) Notwithstanding Sections 12302 and 12302.1, a county
board of supervisors may, at its option, elect to do either of the
following:
(1) Contract with a nonprofit consortium to provide for the
delivery of in-home supportive services.
(2) Establish, by ordinance, a public authority to provide for the
delivery of in-home supportive services.
(b) (1) To the extent that a county elects to establish a public
authority pursuant to paragraph (2) of subdivision (a), the enabling
ordinance shall specify the membership of the governing body of the
public authority, the qualifications for individual members, the
manner of appointment, selection, or removal of members, how long
they shall serve, and other matters as the board of supervisors deems
necessary for the operation of the public authority.
(2) A public authority established pursuant to paragraph (2) of
subdivision (a) shall be both of the following:
(A) An entity separate from the county, and shall be required to
file the statement required by Section 53051 of the Government Code.
(B) A corporate public body, exercising public and essential
governmental functions and that has all powers necessary or
convenient to carry out the delivery of in-home supportive services,
including the power to contract for services pursuant to Sections
12302 and 12302.1 and that makes or provides for direct payment to a
provider chosen by the recipient for the purchase of services
pursuant to Sections 12302 and 12302.2. Employees of the public
authority shall not be employees of the county for any purpose.
(3) (A) As an alternative, the enabling ordinance may designate
the board of supervisors as the governing body of the public
authority.
(B) Any enabling ordinance that designates the board of
supervisors as the governing body of the public authority shall also
specify that no fewer than 50 percent of the membership of the
advisory committee shall be individuals who are current or past users
of personal assistance services paid for through public or private
funds or recipients of services under this article.
(C) If the enabling ordinance designates the board of supervisors
as the governing body of the public authority, it shall also require
the appointment of an advisory committee of not more than 11
individuals who shall be designated in accordance with subparagraph
(B).
(D) Prior to making designations of committee members pursuant to
subparagraph (C), or governing body members in accordance with
paragraph (4), the board of supervisors shall solicit recommendations
of qualified members of either the governing body of the public
authority or of any advisory committee through a fair and open
process that includes the provision of reasonable written notice to,
and a reasonable response time by, members of the general public and
interested persons and organizations.
(4) If the enabling ordinance does not designate the board of
supervisors as the governing body of the public authority, the
enabling ordinance shall require the
membership of the governing body to meet the requirements
of subparagraph (B) of paragraph (3).
(c) (1) Any public authority created pursuant to this section
shall be deemed to be the employer of in-home supportive services
personnel referred to recipients under paragraph (3) of subdivision
(e) within the meaning of Chapter 10 (commencing with Section 3500)
of Division 4 of Title 1 of the Government Code. Recipients shall
retain the right to hire, fire, and supervise the work of any in-home
supportive services personnel providing services to them.
(2) (A) Any nonprofit consortium contracting with a county
pursuant to this section shall be deemed to be the employer of
in-home supportive services personnel referred to recipients pursuant
to paragraph (3) of subdivision (e) for the purposes of collective
bargaining over wages, hours, and other terms and conditions of
employment.
(B) Recipients shall retain the right to hire, fire, and supervise
the work of any in-home supportive services personnel providing
services for them.
(d)
(c) 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)
(d) 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) Notwithstanding any other law, the public authority or
nonprofit consortium shall provide an individual with a copy of his
or her state-level criminal offender record information search
response as provided to the entity by the Department of Justice if
the individual has been denied placement on the registry for
providing supportive services to any recipient of the In-Home
Supportive Services program based on this information. The copy of
the state-level criminal offender record information search response
shall be included with the individual's notice of denial. Along with
the notice of denial, the public authority or public consortium shall
also provide information in plain language on how an individual may
contest the accuracy and completeness of, and refute any erroneous or
inaccurate information in, his or her state-level criminal offender
record information search response as provided by the Department of
Justice as authorized by Section 11126 of the Penal Code. The
state-level criminal offender record information search response
shall not be modified or altered from its form or content as provided
by the Department of Justice.
(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. Notwithstanding any other law, the
public authority or nonprofit consortium shall provide the department
with a copy of the state-level criminal offender record information
search response as provided to the entity by the Department of
Justice for any individual who has requested an appeal of a denial of
placement on the registry for providing supportive services to any
recipient of the In-Home Supportive Services program based on clause
(ii) or (iii) of subparagraph (A). The state-level criminal offender
record information search response shall not be modified or altered
from its form or content as provided by the Department of Justice and
shall be provided to the address specified by the department in its
written request.
(C) This paragraph shall not 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.
(D) As used in this section, "nonprofit consortium" means a
nonprofit public benefit corporation that has all powers necessary to
carry out the delivery of in-home supportive services under the
delegated authority of a government
governmental entity.
(E) 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)
(e) (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)
(f) 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)
(g) 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)
(h) (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 the Statewide Authority established
pursuant to paragraph (1) Section
6531.5 of subdivision (c), the
Government Code, that are agreed to by that public
authority the Statewide Authority in collective
bargaining with the designated representative of the in-home
supportive services personnel pursuant to Chapter 10
Title 23 (commencing with Section 3500)
110000) 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)
(i) 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)
(j) Notwithstanding any other 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)
(k) (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)
( l ) (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) (c) shall apply
only to those matters that do not require federal approval.
(B) The second sentence of subdivision (h)
(g) 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) (d) .
(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)
(m) (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)
(n) 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)
(o) (1) Notwithstanding any other 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)
(p) 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 be implemented
only to the extent that an appropriation is made in the annual Budget
Act or other statute, except for the amendments that added
subparagraph (D) of paragraph (2) of subdivision (e), which shall go
into effect January 1, 2009.
SEC. 16. Section 12302.25 of the Welfare and Institutions Code, as
amended by Section 34 of Chapter 8 of the Statutes of 2011, is
repealed.
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 method of establishing an employer for in-home
supportive service providers pursuant to this subdivision, counties
with an IHSS caseload of more than 500 shall be required to offer an
individual provider employer option.
(b) Nothing in this section shall prohibit any negotiations or
agreement regarding collective bargaining or any wage and benefit
enhancements.
(c) 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.
(d) Prior to implementing subdivision (a), a county may establish
an advisory committee as authorized by Section 12301.3 and solicit
recommendations from the advisory committee on the preferred mode or
modes of service to be utilized in the county for in-home supportive
services.
(e) If a county establishes an in-home supportive services
advisory committee pursuant to Section 12301.3, the county shall take
into account the advice and recommendations of the committee prior
to making policy and funding decisions about the program on an
ongoing basis.
(f) In implementing and administering this section, no county,
public authority, nonprofit consortium, contractor, or a combination
thereof, that delivers in-home supportive services shall reduce the
hours of service for any recipient below the amount determined to be
necessary under the uniform assessment guidelines established by the
department.
(g) Any agreement between a county and an entity acting as an
employer under subdivision (a) shall include a provision that
requires that funds appropriated by the state for wage increases for
in-home supportive services providers be used exclusively for that
purpose. Counties or the state may undertake audits of the entities
acting as employers under the terms of subdivision (a) to verify
compliance with this subdivision.
(h) On or before January 15, 2003, each county shall provide the
department with documentation that demonstrates compliance with the
January 1, 2003, deadline specified in subdivision (a). The
documentation shall include, but is not limited to, any of the
following:
(1) The public authority ordinance and employee relations
procedures.
(2) The invitations to bid and requests for proposal for contract
services for the contract mode.
(3) An invitation to bid and request for proposal for the
operation of a nonprofit consortium.
(4) A county board of supervisors' resolution resolving that the
county has chosen to act as the employer required by subdivision (a)
either by utilizing county employees, as authorized by Section 12302,
to provide in-home supportive services or through county
administration of individual providers.
(5) Any combination of the documentation required under paragraphs
(1) to (4), inclusive, that reflects the decision of a county to
provide mixed modes of service as authorized under subdivision (a).
(i) Any county that is unable to provide the documentation
required by subdivision (h) by January 15, 2003, may provide, on or
before that date, a written notice to the department that does all of
the following:
(1) Explains the county's failure to provide the required
documentation.
(2) Describes the county's plan for coming into compliance with
the requirements of this section.
(3) Includes a timetable for the county to come into compliance
with this section, but in no case shall the timetable extend beyond
March 31, 2003.
(j) Any county that fails to provide the documentation required by
subdivision (h) and also fails to provide the written notice as
allowed under subdivision (i), shall be deemed by operation of law to
be the employer of IHSS individual providers for purposes of Chapter
10 (commencing with Section 3500) of Division 4 of Title 1 of the
Government Code as of January 15, 2003.
(k) Any county that provides a written notice as allowed under
subdivision (i), but fails to provide the documentation required
under subdivision (h) by March 31, 2003, shall be deemed by operation
of law to be the employer of IHSS individual providers for purposes
of Chapter 10 (commencing with Section 3500) of Division 4 of Title 1
of the Government Code as of April 1, 2003.
(l) Any county deemed by operation of law, pursuant to subdivision
(j) or (k), to be the employer of IHSS individual providers for
purposes of Chapter 10 (commencing with Section 3500) of Division 4
of Title 1 of the Government Code shall continue to act in that
capacity until the county notifies the department that it has
established another employer as permitted by this section, and has
provided the department with the documentation required under
subdivision (h) demonstrating the change.
SEC. 17. Section 12306 of the Welfare and Institutions Code, as
amended by Section 8 of Chapter 37 of the Statutes of 2013, is
amended to read:
12306. (a) The state and counties shall share the annual cost of
providing services under this article as specified in this section.
(b) Except as provided in subdivisions (c) and (d), the state
shall pay to each county, from the General Fund and any federal funds
received under Title XX of the federal Social Security Act available
for that purpose, 65 percent of the cost of providing services under
this article, and each county shall pay 35 percent of the cost of
providing those services.
(c) For services eligible for federal funding pursuant to Title
XIX of the federal Social Security Act under the Medi-Cal program
and, and except as provided in
subdivisions (b) and (d) (d), the state
shall pay to each county, from the General Fund and any funds
available for that purpose purpose, 65
percent of the nonfederal cost of providing services under this
article, and each county shall pay 35 percent of the nonfederal cost
of providing those services.
(d) (1) For the period of July 1, 1992, to June 30, 1994,
inclusive, the state's share of the cost of providing services under
this article shall be limited to the amount
appropriated for that purpose in the annual
Budget Act.
(2) The department shall restore the funding reductions required
by former subdivision (c) of Section 12301, fully or in
part, as soon as administratively practicable, if the amount
appropriated from the General Fund for the 1992-93 fiscal year under
this article is projected to exceed the sum of the General Fund
expenditures under Section 14132.95 and the actual General Fund
expenditures under this article for the 1992-93 fiscal year. The
entire amount of the excess shall be applied to the restoration.
Services shall not be restored under this paragraph until the
Department of Finance has determined that the restoration of services
would result in no additional costs to the state or to the counties
relative to the combined state appropriation and county matching
funds for in-home supportive services under this article in the
1992-93 fiscal year.
(e) For the period during which Section 12306.15 is operative,
each county's share of the costs of providing services pursuant to
this article specified in subdivisions (b) and (c) shall remain, but
the County IHSS Maintenance of Effort pursuant to Section 12306.15
shall be in lieu of that share.
(f) This section shall be inoperative if the Coordinated Care
Initiative becomes inoperative pursuant to Section 34 of the act that
added this subdivision.
SEC. 18. Section 12306 of the Welfare and Institutions Code, as
amended by Section 9 of Chapter 37 of the Statutes of 2013, is
repealed.
12306. (a) The state and counties shall share the annual cost of
providing services under this article as specified in this section.
(b) Except as provided in subdivisions (c) and (d), the state
shall pay to each county, from the General Fund and any federal funds
received under Title XX of the federal Social Security Act available
for that purpose, 65 percent of the cost of providing services under
this article, and each county shall pay 35 percent of the cost of
providing those services.
(c) For services eligible for federal funding pursuant to Title
XIX of the federal Social Security Act under the Medi-Cal program
and, except as provided in subdivisions (b) and (d) the state shall
pay to each county, from the General Fund and any funds available for
that purpose 65 percent of the nonfederal cost of providing services
under this article, and each county shall pay 35 percent of the
nonfederal cost of providing those services.
(d) (1) For the period of July 1, 1992, to June 30, 1994,
inclusive, the state's share of the cost of providing services under
this article shall be limited to the amount appropriated for that
purpose in the annual Budget Act.
(2) The department shall restore the funding reductions required
by subdivision (c) of Section 12301, fully or in part, as soon as
administratively practicable, if the amount appropriated from the
General Fund for the 1992-93 fiscal year under this article is
projected to exceed the sum of the General Fund expenditures under
Section 14132.95 and the actual General Fund expenditures under this
article for the 1992-93 fiscal year. The entire amount of the excess
shall be applied to the restoration. Services shall not be restored
under this paragraph until the Department of Finance has determined
that the restoration of services would result in no additional costs
to the state or to the counties relative to the combined state
appropriation and county matching funds for in-home supportive
services under this article in the 1992-93 fiscal year.
(e) This section shall be operative only if Section 8 of the act
that added this subdivision becomes inoperative pursuant to
subdivision (f) of that Section 8.
SEC. 19. Section 12306.1 of the Welfare and Institutions Code, as
amended by Section 10 of Chapter 37 of the Statutes of 2013, is
amended to read:
12306.1. (a) When any increase in provider wages or benefits is
negotiated or agreed to by a public authority or nonprofit consortium
under Section 12301.6, then the county shall use
county-only funds to fund both the county share and the state share,
including employment taxes, of any increase in the cost of the
program, unless otherwise provided for in the annual Budget Act or
appropriated by statute. No increase in wages or benefits negotiated
or agreed to pursuant to this section shall take effect unless and
until, prior to its implementation, the department has obtained the
approval of the State Department of Health Care Services for the
increase pursuant to a determination that it is consistent with
federal law and to ensure federal financial participation for the
services under Title XIX of the federal Social Security Act, and
unless and until all of the following conditions have been met:
(1) Each county has provided the department with documentation of
the approval of the county board of supervisors of the proposed
public authority or nonprofit consortium rate, including wages and
related expenditures. The documentation shall be received by the
department before the department and the State Department of Health
Care Services may approve the increase.
(2) Each county has met department guidelines and regulatory
requirements as a condition of receiving state participation in the
rate.
(b) Any rate approved pursuant to subdivision (a) shall take
effect commencing on the first day of the month subsequent to the
month in which final approval is received from the department. The
department may grant approval on a conditional basis, subject to the
availability of funding.
(c) The state shall pay 65 percent, and each county shall pay 35
percent, of the nonfederal share of wage and benefit increases
negotiated by a public authority or nonprofit consortium pursuant to
Section 12301.6 and associated employment taxes, only in accordance
with subdivisions (d) to (f), inclusive.
(d) (1) The state shall participate as provided in subdivision (c)
in wages up to seven dollars and fifty cents ($7.50) per hour and
individual health benefits up to sixty cents ($0.60) per hour for all
public authority or nonprofit consortium providers. This paragraph
shall be operative for the 2000-01 fiscal year and each year
thereafter unless otherwise provided in paragraphs (2), (3), (4), and
(5), and without regard to when the wage and benefit increase
becomes effective.
(2) The state shall participate as provided in subdivision (c) in
a total of wages and individual health benefits up to nine dollars
and ten cents ($9.10) per hour, if wages have reached at least seven
dollars and fifty cents ($7.50) per hour. Counties shall determine,
pursuant to the collective bargaining process provided for in
subdivision (c) of Section 12301.6, what portion of the nine dollars
and ten cents ($9.10) per hour shall be used to fund wage increases
above seven dollars and fifty cents ($7.50) per hour or individual
health benefit increases, or both. This paragraph shall be operative
for the 2001-02 fiscal year and each fiscal year thereafter, unless
otherwise provided in paragraphs (3), (4), and (5).
(3) The state shall participate as provided in subdivision (c) in
a total of wages and individual health benefits up to ten dollars and
ten cents ($10.10) per hour, if wages have reached at least seven
dollars and fifty cents ($7.50) per hour. Counties shall determine,
pursuant to the collective bargaining process provided for in
subdivision (c) of Section 12301.6, what portion of the ten dollars
and ten cents ($10.10) per hour shall be used to fund wage increases
above seven dollars and fifty cents ($7.50) per hour or individual
health benefit increases, or both. This paragraph shall be operative
commencing with the next state fiscal year for which the May Revision
forecast of General Fund revenue, excluding transfers, exceeds by at
least 5 percent, the most current estimate of revenue, excluding
transfers, for the year in which paragraph (2) became operative.
(4) The state shall participate as provided in subdivision (c) in
a total of wages and individual health benefits up to eleven dollars
and ten cents ($11.10) per hour, if wages have reached at least seven
dollars and fifty cents ($7.50) per hour. Counties shall determine,
pursuant to the collective bargaining process provided for in
subdivision (c) of Section 12301.6, what portion of the eleven
dollars and ten cents ($11.10) per hour shall be used to fund wage
increases or individual health benefits, or both. This paragraph
shall be operative commencing with the next state fiscal year for
which the May Revision forecast of General Fund revenue, excluding
transfers, exceeds by at least 5 percent, the most current estimate
of revenues, excluding transfers, for the year in which paragraph (3)
became operative.
(5) The state shall participate as provided in subdivision (c) in
a total cost of wages and individual health benefits up to twelve
dollars and ten cents ($12.10) per hour, if wages have reached at
least seven dollars and fifty cents ($7.50) per hour. Counties shall
determine, pursuant to the collective bargaining process provided for
in subdivision (c) of Section 12301.6, what portion of the twelve
dollars and ten cents ($12.10) per hour shall be used to fund wage
increases above seven dollars and fifty cents ($7.50) per hour or
individual health benefit increases, or both. This paragraph shall be
operative commencing with the next state fiscal year for which the
May Revision forecast of General Fund revenue, excluding transfers,
exceeds by at least 5 percent, the most current estimate of revenues,
excluding transfers, for the year in which paragraph (4) became
operative.
(e) (1) On or before May 14 immediately prior to the fiscal year
for which state participation is provided under paragraphs (2) to
(5), inclusive, of subdivision (d), the Director of Finance shall
certify to the Governor, the appropriate committees of the
Legislature, and the department that the condition for each
subdivision to become operative has been met.
(2) For purposes of certifications under paragraph (1), the
General Fund revenue forecast, excluding transfers, that is used for
the relevant fiscal year shall be calculated in a manner that is
consistent with the definition of General Fund revenues, excluding
transfers, that was used by the Department of Finance in the 2000-01
Governor's Budget revenue forecast as reflected on Schedule 8 of the
Governor's Budget.
(f) Any increase in overall state participation in wage and
benefit increases under paragraphs (2) to (5), inclusive, of
subdivision (d), shall be limited to a wage and benefit increase of
one dollar ($1) per hour with respect to any fiscal year. With
respect to actual changes in specific wages and health benefits
negotiated through the collective bargaining process, the state shall
participate in the costs, as approved in subdivision (c), up to the
maximum levels as provided under paragraphs (2) to (5), inclusive, of
subdivision (d).
(g) For the period during which Section 12306.15 is operative,
each county's share of the costs of negotiated wage and benefit
increases specified in subdivision (c) shall remain, but the County
IHSS Maintenance of Effort pursuant to Section 12306.15 shall be in
lieu of that share.
(h) This section shall be inoperative if the Coordinated Care
Initiative becomes inoperative pursuant to Section 34 of the act that
added this subdivision.
SEC. 20. Section 12306.1 of the Welfare and Institutions Code, as
amended by Section 11 of Chapter 37 of the Statutes of 2013, is
repealed.
12306.1. (a) When any increase in provider wages or benefits is
negotiated or agreed to by a public authority or nonprofit consortium
under Section 12301.6, then the county shall use county-only funds
to fund both the county share and the state share, including
employment taxes, of any increase in the cost of the program, unless
otherwise provided for in the annual Budget Act or appropriated by
statute. No increase in wages or benefits negotiated or agreed to
pursuant to this section shall take effect unless and until, prior to
its implementation, the department has obtained the approval of the
State Department of Health Care Services for the increase pursuant to
a determination that it is consistent with federal law and to ensure
federal financial participation for the services under Title XIX of
the federal Social Security Act, and unless and until all of the
following conditions have been met:
(1) Each county has provided the department with documentation of
the approval of the county board of supervisors of the proposed
public authority or nonprofit consortium rate, including wages and
related expenditures. The documentation shall be received by the
department before the department and the State Department of Health
Care Services may approve the increase.
(2) Each county has met department guidelines and regulatory
requirements as a condition of receiving state participation in the
rate.
(b) Any rate approved pursuant to subdivision (a) shall take
effect commencing on the first day of the month subsequent to the
month in which final approval is received from the department. The
department may grant approval on a conditional basis, subject to the
availability of funding.
(c) The state shall pay 65 percent, and each county shall pay 35
percent, of the nonfederal share of wage and benefit increases
negotiated by a public authority or nonprofit consortium pursuant to
Section 12301.6 and associated employment taxes, only in accordance
with subdivisions (d) to (f), inclusive.
(d) (1) The state shall participate as provided in subdivision (c)
in wages up to seven dollars and fifty cents ($7.50) per hour and
individual health benefits up to sixty cents ($0.60) per hour for all
public authority or nonprofit consortium providers. This paragraph
shall be operative for the 2000-01 fiscal year and each year
thereafter unless otherwise provided in paragraphs (2), (3), (4), and
(5), and without regard to when the wage and benefit increase
becomes effective.
(2) The state shall participate as provided in subdivision (c) in
a total of wages and individual health benefits up to nine dollars
and ten cents ($9.10) per hour, if wages have reached at least seven
dollars and fifty cents ($7.50) per hour. Counties shall determine,
pursuant to the collective bargaining process provided for in
subdivision (c) of Section 12301.6, what portion of the nine dollars
and ten cents ($9.10) per hour shall be used to fund wage increases
above seven dollars and fifty cents ($7.50) per hour or individual
health benefit increases, or both. This paragraph shall be operative
for the 2001-02 fiscal year and each fiscal year thereafter, unless
otherwise provided in paragraphs (3), (4), and (5).
(3) The state shall participate as provided in subdivision (c) in
a total of wages and individual health benefits up to ten dollars and
ten cents ($10.10) per hour, if wages have reached at least seven
dollars and fifty cents ($7.50) per hour. Counties shall determine,
pursuant to the collective bargaining process provided for in
subdivision (c) of Section 12301.6, what portion of the ten dollars
and ten cents ($10.10) per hour shall be used to fund wage increases
above seven dollars and fifty cents ($7.50) per hour or individual
health benefit increases, or both. This paragraph shall be operative
commencing with the next state fiscal year for which the May Revision
forecast of General Fund revenue, excluding transfers, exceeds by at
least 5 percent, the most current estimate of revenue, excluding
transfers, for the year in which paragraph (2) became operative.
(4) The state shall participate as provided in subdivision (c) in
a total of wages and individual health benefits up to eleven dollars
and ten cents ($11.10) per hour, if wages have reached at least seven
dollars and fifty cents ($7.50) per hour. Counties shall determine,
pursuant to the collective bargaining process provided for in
subdivision (c) of Section 12301.6, what portion of the eleven
dollars and ten cents ($11.10) per hour shall be used to fund wage
increases or individual health benefits, or both. This paragraph
shall be operative commencing with the next state fiscal year for
which the May Revision forecast of General Fund revenue, excluding
transfers, exceeds by at least 5 percent, the most current estimate
of revenues, excluding transfers, for the year in which paragraph (3)
became operative.
(5) The state shall participate as provided in subdivision (c) in
a total cost of wages and individual health benefits up to twelve
dollars and ten cents ($12.10) per hour, if wages have reached at
least seven dollars and fifty cents ($7.50) per hour. Counties shall
determine, pursuant to the collective bargaining process provided for
in subdivision (c) of Section 12301.6, what portion of the twelve
dollars and ten cents ($12.10) per hour shall be used to fund wage
increases above seven dollars and fifty cents ($7.50) per hour or
individual health benefit increases, or both. This paragraph shall be
operative commencing with the next state fiscal year for which the
May Revision forecast of General Fund revenue, excluding transfers,
exceeds by at least 5 percent, the most current estimate of revenues,
excluding transfers, for the year in which paragraph (4) became
operative.
(e) (1) On or before May 14 immediately prior to the fiscal year
for which state participation is provided under paragraphs (2) to
(5), inclusive, of subdivision (d), the Director of Finance shall
certify to the Governor, the appropriate committees of the
Legislature, and the department that the condition for each
subdivision to become operative has been met.
(2) For purposes of certifications under paragraph (1), the
General Fund revenue forecast, excluding transfers, that is used for
the relevant fiscal year shall be calculated in a manner that is
consistent with the definition of General Fund revenues, excluding
transfers, that was used by the Department of Finance in the 2000-01
Governor's Budget revenue forecast as reflected on Schedule 8 of the
Governor's Budget.
(f) Any increase in overall state participation in wage and
benefit increases under paragraphs (2) to (5), inclusive, of
subdivision (d), shall be limited to a wage and benefit increase of
one dollar ($1) per hour with respect to any fiscal year. With
respect to actual changes in specific wages and health benefits
negotiated through the collective bargaining process, the state shall
participate in the costs, as approved in subdivision (c), up to the
maximum levels as provided under paragraphs (2) to (5), inclusive, of
subdivision (d).
(g) This section shall be operative only if Section 10 of the act
that added this subdivision becomes inoperative pursuant to
subdivision (h) of that Section 10.
SEC. 21. Section 14186.35 of the Welfare and Institutions Code is
amended to read:
14186.35. (a) Not sooner than March 1, 2013, in-home supportive
services (IHSS) shall be a Medi-Cal benefit available through managed
care health plans in a county where this article is effective.
Managed care health plans shall cover IHSS in accordance with the
standards and requirements set forth in Article 7 (commencing with
Section 12300) of Chapter 3. Specifically, managed care health plans
shall do all of the following:
(1) Ensure access to, provision of, and payment for IHSS for
individuals who meet the eligibility criteria for IHSS.
(2) Ensure recipients retain the right to be the employer, to
select, engage, direct, supervise, schedule, and terminate IHSS
providers in accordance with Section 12301.6.
12300.7.
(3) Assume all financial liability for payment of IHSS services
for recipients receiving said services pursuant to managed care.
(4) Create a care coordination team, as needed, unless the
consumer objects. If the consumer is an IHSS recipient, his or her
participation and the participation of his or her provider shall be
at the recipient's option. The care coordination team shall include
the consumer, his or her authorized representative, managed care
health plan, county social services agency, Community Based Adult
Services (CBAS) case manager for CBAS clients, Multipurpose Senior
Services Program (MSSP) case manager for MSSP clients, and may
include others as identified by the consumer.
(5) Maintain the paramedical role and function of providers as
authorized pursuant to Sections 12300 and 12301.
(6) Ensure compliance with all requirements set forth in Section
14132.956 and any resulting state plan amendments.
(7) Adhere to quality assurance provisions and individual data and
other standards and requirements as specified by the State
Department of Social Services including state and federal quality
assurance requirements.
(8) Share confidential beneficiary data with the contractors
specified in this section to improve care coordination, promote
shared understanding of the consumer's needs, and ensure appropriate
access to IHSS and other long-term services and supports.
(9) (A) Enter into a memorandum of understanding with a county
agency and the county's public authority or nonprofit consortium
pursuant to Section 12301.6 to continue to perform their respective
functions and responsibilities pursuant to the existing ordinance or
contract until the Director of Health Care Services provides
notification pursuant to implementation date set
forth in subdivision (a) of Section 12300.7 for that
county. 12300.7.
(B) Following the notification pursuant to
implementation date set forth in subdivision (a) of Section
12300.7, enter into a memorandum of understanding with the county
agencies to perform the following activities:
(i) Assess, approve, and authorize each recipient's initial and
continuing need for services pursuant to Article 7 (commencing with
Section 12300) of Chapter 3. County agency assessments shall be
shared with the care coordination teams established under paragraph
(4), when applicable, and the county agency thereafter may receive
and consider additional input from the care coordination team.
(ii) Plans may contract with counties for additional assessments
for purposes of paragraph (6) of subdivision (b) of Section 14186.
(iii) Enroll providers, conduct provider orientation, and retain
enrollment documentation pursuant to Sections 12301.24 and 12305.81.
(iv) Conduct criminal background checks on all potential providers
and exclude providers consistent with the provisions set forth in
Sections 12305.81, 12305.86, and 12305.87.
(v) Provide assistance to IHSS recipients in finding eligible
providers through the establishment of a provider registry as well as
provide training for providers and recipients as set forth in
Section 12301.6.
(vi) Refer all providers to the California In-Home Supportive
Services Authority or nonprofit consortium for the
purposes of wages, benefits, and other terms and conditions of
employment in accordance with subdivision (a) of Section
12300.7 and Title 23 (commencing with Section 110000) of
the Government Code.
(vii) Pursue overpayment recovery pursuant to Section 12305.83.
(viii) Perform quality assurance activities including routine case
reviews, home visits, and detecting and reporting suspected fraud
pursuant to Section 12305.71.
(ix) Share confidential data necessary to implement the provisions
of this section.
(x) Appoint an advisory committee of not more than 11 people, and
no less than 50 percent of the membership of the advisory committee
shall be individuals who are current or past users of personal
assistance paid for through public or private funds or recipients of
IHSS services.
(xi) Continue to perform other functions necessary for the
administration of the IHSS program pursuant to Article 7 (commencing
with Section 12300) of Chapter 3 and regulations promulgated by the
State Department of Social Services pursuant to that article.
(C) A county may contract with an entity or may establish a public
authority pursuant to Section 12301.6 for the performance of any or
all of the activities set forth in a contract with a managed care
health plan pursuant to this section.
(10) Enter into a contract with the State Department of Social
Services to perform the following activities:
(A) Pay wages and benefits to IHSS providers in accordance with
the wages and benefits negotiated pursuant to Title 23 (commencing
with Section 110000) of the Government Code.
(B) Perform obligations on behalf of the IHSS recipient as the
employer of his or her provider, including unemployment compensation,
disability benefits, applicable federal and state taxes, and federal
old age survivor's and disability insurance through the state's
payroll system for IHSS in accordance with Sections 12302.2 and
12317.
(C) Provide technical assistance and support for all
payroll-related activities involving the state's payroll system for
IHSS, including, but not limited to, the monthly restaurant allowance
as set forth in Section 12303.7, the monthly cash payment in advance
as set forth in Section 12304, and the direct deposit program
as set forth in Section 12304.4.
(D) Share recipient and provider data with managed care health
plans for members who are receiving IHSS to support care
coordination.
(E) Provide an option for managed care health plans to participate
in quality monitoring activities conducted by the State Department
of Social Services pursuant to subdivision (f) of Section 12305.7 for
recipients who are plan members.
(11) In concert with the department, timely reimburse the state
for payroll and other obligations of the beneficiary as the employer,
including unemployment compensation, disability benefits, applicable
federal and state taxes, and federal old age survivors and
disability insurance benefits through the state's payroll system.
(12) In a county where services are provided in the homemaker
mode, enter into a contract with the county to implement the
provision of services pursuant to the homemaker mode as set forth in
Section 12302.
(13) Retain the IHSS individual provider mode as a choice
available to beneficiaries in all participating managed care health
plans in each county.
(14) In a county where services are provided pursuant to a
contract, and as needed, enter into a contract with a city, county,
or city and county agency, a local health district, a voluntary
nonprofit agency, or a proprietary agency as set forth in Section
12302 and in accordance with Section 12302.6.
(15) Assume the financial risk associated with the cost of payroll
and associated activities set forth in paragraph (10).
(b) IHSS recipients receiving services through managed care health
plans shall retain all of the following:
(1) The responsibilities as the employer of the IHSS provider for
the purposes of hiring, firing, and supervising their provider of
choice as set forth in Section 12301.6.
12300.7.
(2) The ability to appeal any action relating to his or her
application for or receipt of services pursuant to Article 7
(commencing with Section 12300) of Chapter 3.
(3) The right to employ a provider applicant who has been
convicted of an offense specified in Section 12305.87 by submitting a
waiver of the exclusion.
(4) The ability to request a reassessment pursuant to Section
12301.1.
(c) The department and the State Department of Social Services,
along with the counties, managed care health plans, consumers,
advocates, and other stakeholders, shall develop a referral process
and informational materials for the appeals process that is
applicable to home- and community-based services plan benefits
authorized by a managed care health plan. The process established by
this paragraph shall ensure ease of access for consumers.
(d) For services provided through managed care health plans, the
IHSS provider shall continue to adhere to the requirements set forth
in subdivision (b) of Section 12301.24, subdivision (a) of Section
12301.25, subdivision (a) of Section 12305.81, and subdivision (a) of
Section 12306.5.
(e) In accordance with Section 14186.2, as the provision of IHSS
transitions to managed care health plans in a phased-in approach, the
State Department of Social Services shall do all of the following:
(1) Retain program administration functions, in coordination with
the department, including policy development, provider appeals and
general exceptions, and quality assurance and program integrity for
the IHSS program in accordance with Article 7 (commencing with
Section 12300) of Chapter 3.
(2) Perform the obligations on behalf of the recipient as employer
relating to workers' compensation as set forth in Section 12302.2
and Section 12302.21 for those entities that have entered into a
contract with a managed care health plan pursuant to Section 12302.6.
(3) Retain responsibilities related to the hearing process for
IHSS recipient appeals as set forth in Chapter 7 (commencing with
Section 10950) of Part 2.
(4) Continue to have access to and provide confidential recipient
data necessary for the administration of the program.
(f) A managed care health plan shall not be deemed to
be the employer of an individual in-home supportive services provider
referred to recipients under this section for purposes of liability
due to the negligence or intentional torts of the individual
provider.
SEC. 22. Section 34 of Chapter 37 of the Statutes of 2013, as
amended by Section 212 of Chapter 71 of the Statutes of 2014, is
amended to read:
Sec. 34. (a) At least 30 days prior to enrollment of beneficiaries
into the Coordinated Care Initiative, the Director of Finance shall
estimate the amount of net General Fund savings obtained from the
implementation of the Coordinated Care Initiative. This estimate
shall take into account any net savings to the General Fund achieved
through the tax imposed pursuant to Article 5 (commencing with
Section 6174) of Chapter 2 of Part 1 of Division 2 of the Revenue and
Taxation Code.
(b) (1) By January 10 for of each
fiscal year after implementation of the Coordinated Care Initiative,
for as long as the Coordinated Care Initiative remains operative, the
Director of Finance shall estimate the amount of net General Fund
savings obtained from the implementation of the Coordinated Care
Initiative.
(2) Savings shall be determined under this subdivision by
comparing the estimated costs of the Coordinated Care Initiative, as
approved by the federal government, and the estimated costs of the
program if the Coordinated Care Initiative were not operative. The
determination shall also include any net savings to the General Fund
achieved through the tax imposed pursuant to Article 5 (commencing
with Section 6174) of Chapter 2 of Part 1 of Division 2 of the
Revenue and Taxation Code.
(3) The estimates prepared by the Director of Finance, in
consultation with the Director of Health Care Services, shall be
provided to the Legislature.
(c) (1) Notwithstanding any other law, if, at least 30 days prior
to enrollment of beneficiaries into the Coordinated Care Initiative,
the Director of Finance estimates pursuant to subdivision (a) that
the Coordinated Care Initiative will not generate net General Fund
savings, then the activities to implement the Coordinated Care
Initiative shall be suspended immediately and the Coordinated Care
Initiative shall become inoperative July 1, 2014.
(2) If the Coordinated Care Initiative becomes inoperative
pursuant to this subdivision, the Director of Health Care Services
shall provide any necessary notifications to any affected entities.
(3) For purposes of this subdivision and subdivision (d) only,
"Coordinated Care Initiative" means all of the following statutes and
any amendments to the following:
(A) Sections 14132.275, 14183.6, and 14301.1 of the Welfare and
Institutions Code, as amended by this act.
Chapter 37 of the Statutes of 2013.
(B) Sections 14132.276, 14132.277, 14182.16, 14182.17, 14182.18,
and 14301.2 of the Welfare and Institutions Code.
(C) Article 5.7 (commencing with Section 14186) of Chapter 7 of
Part 3 of Division 9 of the Welfare and Institutions Code.
(D) Title 23 (commencing with Section 110000) of the Government
Code.
(E) Section 6531.5 of the Government Code.
(F) Section 6253.2 of the Government Code, as amended by this act.
(G)
(D) Sections 12300.5, 12300.6, 12300.7,
12302.6, 12306.15, 12330, 12302.6, 14186.35, and
14186.36 of the Welfare and Institutions Code.
(H) Sections 10101.1, 12306, and 12306.1 of the Welfare and
Institutions Code, as amended by this act.
(I)
(E) The amendments made to Sections
Section 12302.21 and 12302.25 of the
Welfare and Institutions Code, as made by Chapter 439 of the Statutes
of 2012.
(d) (1) Notwithstanding any other law, and beginning in 2015, if
the Director of Finance estimates pursuant to subdivision (b) that
the Coordinated Care Initiative will not generate net General Fund
savings, the Coordinated Care Initiative shall become inoperative
January 1 of the following calendar year, except as follows:
year.
(A) Section 12306.15 of the Welfare and Institutions Code shall
become inoperative as of July 1 of that same calendar year.
(B) For any agreement that has been negotiated and approved by the
Statewide Authority, the Statewide Authority shall continue to
retain its authority pursuant to Section 6531.5 and Title 23
(commencing with Section 110000) of the Government Code and Sections
12300.5, 12300.6, 12300.7, and 12302.6 of the Welfare and
Institutions Code, and shall remain the employer of record for all
individual providers covered by the agreement until the agreement
expires or is subject to renegotiation, whereby the authority of the
Statewide Authority shall terminate and the county shall be the
employer of record in accordance with Section 12302.25 of the Welfare
and Institutions Code and may establish an employer of record
pursuant to Section 12301.6 of the Welfare and Institutions Code.
(C) For an agreement that has been assumed by the Statewide
Authority that was negotiated and approved by a predecessor agency,
the Statewide Authority shall cease being the employer of record and
the county shall be reestablished as the employer of record for
purposes of bargaining and in accordance with Section 12302.25 of the
Welfare and Institutions Code, and may establish an employer of
record pursuant to Section 12301.6 of the Welfare and Institutions
Code.
(2) If the Coordinated Care Initiative becomes inoperative
pursuant to this subdivision, the Director of Health Care Services
shall provide any necessary notifications to any affected entities.