BILL NUMBER: SB 1036 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JUNE 26, 2012
AMENDED IN ASSEMBLY JUNE 25, 2012
INTRODUCED BY Committee on Budget and Fiscal Review
FEBRUARY 6, 2012
An act to amend Section 6253.2 of, to add Section 6531.5 to, to
add Title 23 (commencing with Section 110000) to, and to add and
repeal Section 110035.5 of, the Government Code, and to
amend Sections 10101.1, 12306, and 12306.1 of, and
to add Sections 12300.5, 12300.6, 12300.7, 12302.6, 12306.15,
12330, 14186.35, and 14186.36 to, the Welfare and Institutions Code,
relating to public social services, and making an appropriation
therefor, to take effect immediately, bill related to the budget.
LEGISLATIVE COUNSEL'S DIGEST
SB 1036, as amended, Committee on Budget and Fiscal Review. Public
social services: in-home supportive services.
Existing law provides for the county-administered In-Home
Supportive Services (IHSS) program, under which qualified aged,
blind, and disabled persons are provided with services in order to
permit them to remain in their own homes and avoid
institutionalization. Existing law authorizes services to be provided
under the IHSS program either through the employment of individual
providers, a contract between the county and an entity for the
provision of services, the creation by the county of a public
authority, or a contract between the county and a nonprofit
consortium.
This bill would establish the California In-Home Supportive
Services Authority (Statewide Authority) and would deem the authority
a joint powers authority and a public entity separate and apart from
the parties that have appointing power to the authority, as
specified, or the employers of those individuals so appointed. This
bill would require 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.
Under existing law, any Statewide Authority
public authority created under the IHSS program is deemed to
be the employer of in-home support services personnel within the
meaning of the Meyers-Milias Brown Act, which governs local
employer-employee relations. Existing law also provides that any
nonprofit consortium contracting with a county is deemed the employer
of in-home supportive services personnel for the purposes of
collective bargaining over wages, hours, and other terms and
conditions of employment. Existing law also establishes the Public
Employment Relations Board (PERB) in state government as a means of
resolving disputes and enforcing the statutory duties and rights of
employers and employees under, among other provisions, the
Educational Employment Relations Act, the Higher Education
Employer-Employee Relations Act, the Ralph C. Dills Act, and the
Meyers-Milias-Brown Act.
This bill would establish the In-Home Supportive Services
Employer-Employee Relations Act for the purpose of resolving disputes
regarding wages, benefits, and other terms and conditions of
employment between the California In-Home Supportive Services
Authority (Statewide Authority), as specified, and recognized
employee organizations. Under the act, the Statewide Authority would
be deemed to be the employer of record, for purposes of collective
bargaining, of individual providers of in-home supportive services in
each county, upon implementation by a county, in accordance with
certain procedures. Pursuant to the act, employees would have the
right to form, join, and participate in the activities of employee
organizations for the purpose of representation on all matters within
the scope of representation.
The bill would require separate bargaining units to be created,
consistent with bargaining units that have been recognized by
predecessor agencies, as defined. The bill would require the
Statewide Authority to meet and confer in good faith with employee
organizations on all matters within the scope of representation, as
specified. The bill would further require the Statewide Authority to
assume the predecessor agency's rights and obligations under any
memorandum of understanding or agreement between the predecessor
agency and the recognized employee organization that is in effect on
the county implementation date until it expires. The bill would
provide that individual providers employed by a predecessor agency
would retain employee status and would not be required by the
Statewide Authority to requalify to receive payment for providing
services.
The bill also would make the powers and duties of PERB applicable
to its provisions, establish legal procedures for appeals regarding
recognition or certification of an employee organization, authorize
agency shop agreements and fee obligations, establish mediation and
impasse procedures, and authorize the Statewide Authority to adopt
reasonable rules and regulations relating to determining the status
of organizations and associations. The bill also would authorize PERB
and the Statewide Authority to adopt emergency regulations to
implement the act, as specified.
The bill would establish the In-Home Supportive Services Fund
within the State Treasury. Moneys in the fund would be made
available, upon appropriation by the Legislature, to the Statewide
Authority for the purposes of funding its functions.
This bill would require all counties, commencing July 1, 2012, to
have a County IHSS Maintenance of Effort (MOE), and would require
counties to pay the County IHSS MOE instead of paying the nonfederal
share of IHSS costs, as specified.
The bill would require the Statewide Authority to assume
prescribed responsibilities in a county or city and county upon
notification by the Director of Health Care Services that the
assignment of eligible Medi-Cal beneficiaries described in a
specified provision of law has been completed in that county or city
and county. The bill would require the county or city and county to
take certain actions upon this notification. By increasing the duties
of local officials, this bill would create a state-mandated local
program.
This bill would authorize managed care health plans, as defined,
to assume the authority, previously granted to counties, to contract
for the provision of in-home supportive services with a qualified
agency, as defined, subject to specified restrictions and
requirements.
Existing law provides for 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. One of the methods by which these
services are provided is pursuant to contracts with various types of
managed care plans.
This bill would provide that, not sooner than March 1, 2013, IHSS
shall be a Medi-Cal benefit available through managed care health
plans in specified counties. This bill would require that the managed
care health plans, among other things, enter into a memoranda of
understanding and contract with applicable entities, as specified,
and would provide that IHSS recipients receiving services through
managed care health plans shall retain specified rights and
responsibilities. This bill would, until July 1, 2017, require the
State Department of Health Care Services, the State Department of
Social Services, and the California Department of Aging to establish
a stakeholder workgroup, as prescribed, to develop a universal
assessment process, including a universal assessment tool, to be used
for home- and community-based services, as defined, including IHSS.
This bill would become inoperative under certain circumstances.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
This bill would appropriate $1,000 from the General Fund to the
State Department of Health Care Services for administration.
This bill would become operative only if AB 1468 or SB 1008 of the
2011-12 Regular Session is enacted and takes effect.
This bill would declare that it is to take effect immediately as a
bill providing for appropriations related to the Budget Bill.
Vote: majority. Appropriation: yes. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 6253.2 of the Government Code 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, shall not be 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 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 shall apply 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.
SEC. 2. Section 6531.5 is added to the Government Code, to read:
6531.5. (a) There is hereby created the California In-Home
Supportive Services Authority, hereafter referred to as the Statewide
Authority. Notwithstanding any other law, the Statewide Authority
shall be deemed a joint powers authority created pursuant to this
article and is a public entity separate and apart from the parties
that have appointing power to the Statewide Authority or the
employers of those individuals so appointed. Notwithstanding the
requirements of this article, an agreement shall not be required to
create the Statewide Authority.
(b) The Statewide Authority shall consist of the following five
members:
(1) Two members shall be county officials who are appointed by,
and who serve at the pleasure of, the Governor.
(2) Three members shall be the Director of Social Services, the
Director of Health Care Services, and the Director of Finance in
their ex officio capacities, or their duly appointed representatives.
(c) The members of the Statewide Authority shall serve without
compensation.
(d) The Statewide Authority shall not be subject to Sections 6501,
6505, and 53051.
(e) The Statewide Authority shall appoint an advisory committee
that shall be comprised of not more than 13 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 recipients of
services in-home supportive.
(1) 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 the advisory
committee.
(3) Individuals from each representative organization that are
designated representatives of IHSS providers shall be appointed to
the advisory committee.
(4) The Statewide Authority shall designate a department employee
to provide ongoing advice and support to the advisory committee.
(f) Prior to the appointment of members to a committee authorized
by subdivision (e), the Statewide Authority 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.
(g) The advisory committee established pursuant to subdivision (e)
shall provide ongoing advice and recommendations regarding in-home
supportive services to the Statewide Authority, the State Department
of Social Services, and the State Department of Health Care Services.
SEC. 3. Title 23 (commencing with Section 110000) is added to the
Government Code, to read:
TITLE 23. In-Home Supportive Services Employer-Employee
Relations Act
CHAPTER 1. GENERAL PROVISIONS
110000. This title shall be known and may be cited as the In-Home
Supportive Services Employer-Employee Relations Act.
110001. It is the purpose of this title to promote full
communication between the California In-Home Supportive Services
Authority (the Statewide Authority) and the recognized employee
organization representing independent providers by providing a
reasonable method of resolving disputes regarding wages, benefits,
and other terms and conditions of employment, as defined in Section
110023, between the Statewide Authority for in-home supportive
services and recognized employee organizations. It is also the
purpose of this title to promote the improvement of personnel
management and employer-employee relations within the Statewide
Authority by providing a uniform basis for recognizing the right of
independent providers to join organizations of their own choice and
be represented by those organizations for purposes of collective
bargaining with the Statewide Authority. This title is intended to
strengthen methods of administering employer-employee relations
through the establishment of uniform and orderly methods of
communication between the recognized employee organizations and the
Statewide Authority. Except as expressly provided herein, this title
is not intended to require changes in existing bargaining units or
memoranda of agreement or understanding.
110002. Except as otherwise provided by the Legislature,
employees shall have the right to form, join, and participate in the
activities of employee organizations of their own choosing for the
purpose of representation on all matters within the scope of
representation. Employees also shall have the right to refuse to join
or participate in the activities of employee organizations.
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 (e) (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
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" 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, a local public authority,
or a nonprofit consortium established pursuant to Section 12301.6 of
the Welfare and Institutions Code before the effective date of this
title.
(j) "Recognized employee organization" means an employee
organization that has been formally acknowledged as follows:
(1) Before the effective date of this title, by a county, a local
public authority, or a nonprofit consortium established pursuant to
Section 12301.6 of the Welfare and Institutions Code, as the
representative of its employees.
(2) On or after the effective date of this title, by the Statewide
Authority.
(k) "Statewide Authority" means the California In-Home Supportive
Services Authority established pursuant to Section 6531
6531.5 .
CHAPTER 2. TRANSITIONAL PROVISIONS
110004. It is the intent of the Legislature to stabilize the
labor and employment relations between counties, nonprofit
consortiums, and local public authorities and of
individual providers in order to provide continuity of care and
services to the maximum extent possible, and consistent with the
responsibilities of the Statewide Authority under the act adding this
title.
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.
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.
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.
110008. On the county implementation date, separate bargaining
units shall be created consistent with the bargaining units that have
been recognized by predecessor agencies. 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 collective bargaining, 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. 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.
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.
110010. Negotiations between the Statewide Authority and
recognized employee organizations shall be conducted only in the
following manner:
(a) As of January 1, 2013 July 1, 2012
, all recognized employee organizations affiliated with the
same national parent union shall negotiate as a coalition on behalf
of all bargaining units they represent. If recognized employee
organizations are affiliated with two or more different national
parent unions, those recognized employee organizations shall also
negotiate as a coalition on behalf of all bargaining units they
represent.
(b) An employee organization obtaining recognition after
January 1, 2013 July 1, 2012 , which is
affiliated with the same national parent union or unions as the
coalitions described in subdivision (a), shall become a part of the
coalition affiliated with its same national parent union or unions.
(c) An employee organization not affiliated with a national parent
union covered by subdivision (a), that obtains recognition after
January 1, 2013 July 1, 2012 , and
represents fewer than 100,000 employees subject to this title, shall
negotiate as a member of a coalition, separate from the coalitions
described in subdivision (a) and comprised of all those recognized
employee organizations on behalf of all units they collectively
represent. If that employee organization represents 100,000 or more
employees subject to this title, it shall have the right to negotiate
as its own coalition on behalf of all bargaining units it
represents.
(d) Each coalition negotiating with the Statewide Authority may
enter into supplemental bargaining of unit-specific issues for
inclusion in, or as an addendum to, collective bargaining agreements,
subject to the parties' agreement regarding the issues and
procedures for supplemental bargaining. This section does not
prohibit coordination of bargaining between two or more bargaining
coalitions.
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) Except as set forth in subdivision (d), nothing
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 require 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. This review requirement 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. If, upon review, but not later than 180 days
after the county commences transition pursuant to paragraph (1) of
subdivision (g) of Section 14132.275 of 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, the parties shall meet and
confer regarding the objection and endeavor to reach agreement prior
to the county implementation date. If an agreement is not reached by
the county implementation date, the objectionable language is deemed
inoperable. All terms to which no objection is made shall be deemed
accepted by the Statewide Authority. If the Statewide Authority fails
to provide the 180 days' notice of objection, it shall be deemed
waived.
110012. If the Statewide Authority and the recognized employee
organization negotiate changes to locally administered health
benefits for individual providers, the Statewide Authority shall give
90 days' notice to the county of the agreed-upon changes.
CHAPTER 3. ADMINISTRATION
110013. The Legislature hereby finds and declares that collective
bargaining for individual providers under this title constitutes a
matter of statewide concern. Therefore, this title is applicable to
all counties, notwithstanding charter provisions to the contrary as
set forth in Section 110005.
110014. Where the language of this title is the same or
substantially the same as that contained in Chapter 10 (commencing
with Section 3500) of Division 4 of Title 1, it shall be interpreted
and applied by the board in a manner consistent with and in
accordance with judicial interpretations of the same language.
110015. Except as provided in this title, the powers and duties
of the board described in Sections 3541.3 and 3541.5 shall also
apply, as appropriate, to this title. Included among the appropriate
powers of the board are the powers to order elections, to conduct any
election the board orders, to order unit modifications consistent
with Section 110008, and to adopt rules.
110016. Notwithstanding any other law, if a decision by an
administrative law judge regarding the recognition, certification,
decertification, or unit modification, consistent with Section
110008, of an employee organization is appealed, the decision shall
be deemed the final order of the board if the board does not issue a
ruling that supersedes the decision no later than 180 days after the
appeal is filed.
110017. (a) Any charging party, respondent, or intervener
aggrieved by a final decision or order of the board in an unfair
practice case, except a decision of the board not to issue a
complaint in such a case, and any party to a final decision or order
of the board in a unit determination consistent with Section 110008,
or in a representation, recognition, or election matter that is not
brought as an unfair practice case, may petition for a writ of
extraordinary relief from that decision or order. A board order
directing an election shall not be stayed pending judicial review.
(b) A petition for a writ of extraordinary relief shall be filed
in the district court of appeal having jurisdiction over the county
where the events giving rise to the decision or order occurred. The
petition shall be filed within 30 days from the date of the issuance
of the board's final decision or order, or order denying
reconsideration, as applicable. Upon the filing of the petition, the
court shall cause notice to be served upon the board and thereafter
shall have jurisdiction of the proceeding. The board shall file in
the court the record of the proceeding, certified by the board,
within 10 days after the clerk's notice unless that time is extended
by the court for good cause shown. The court shall have jurisdiction
to grant any temporary relief or restraining order it deems just and
proper, and in like manner to make and enter a decree enforcing,
modifying, and enforcing as modified, or setting aside in whole or in
part the decision or order of the board. The findings of the board
with respect to questions of fact, including ultimate facts, if
supported by substantial evidence on the record considered as a
whole, shall be conclusive. Title 1 (commencing with Section 1067) of
Part 3 of the Code of Civil Procedure relating to writs shall,
except where specifically superseded by this section, apply to
proceedings pursuant to this section.
(c) If the time to petition for extraordinary relief from a board
decision or order has expired, the board may seek enforcement of any
final decision or order in a district court of appeal or superior
court having jurisdiction over the county where the events giving
rise to the decision or order occurred. The board shall respond
within 10 days to any inquiry from a party to the action as to why
the board has not sought court enforcement of the final decision or
order. If the response does not indicate that there has been
compliance with the board's final decision or order, the board shall
seek enforcement of the final decision or order upon the request of
the party. The board shall file in the court the record of the
proceeding, certified by the board, and appropriate evidence
disclosing the failure to comply with the decision or order. If,
after hearing, the court determines that the order was issued
pursuant to the procedures established by the board and that the
person or entity refuses to comply with the order, the court shall
enforce the order by writ of mandamus or other proper process. The
court may not review the merits of the order.
CHAPTER 4. LABOR RELATIONS
110018. No individual provider shall be subject to punitive
action or denied promotion, or threatened with any such treatment,
for the exercise of lawful action as an elected, appointed, or
recognized representative of any employee bargaining unit.
110019. (a) Notwithstanding Section 110002, any other provision
of this title, or any other law, rule, or regulation, an agency shop
agreement may be negotiated between the employer and a recognized
public employee organization that has been recognized as the
exclusive or majority bargaining agent, in accordance with this
title. As used in this title, "agency shop" means an arrangement that
requires an employee, as a condition of continued employment, either
to join the recognized employee organization or to pay the
organization a service fee in an amount not to exceed the standard
initiation fee, periodic dues, and general assessments of the
organization, to be determined by the organization in accordance with
applicable law.
(b) In addition to the procedure prescribed in subdivision (a), an
agency shop arrangement between the Statewide Authority and a
recognized employee
organization that has been recognized as the exclusive or majority
bargaining agent shall be placed in effect, without a negotiated
agreement, upon (1) a signed petition of 30 percent of the employees
in the applicable bargaining unit requesting an agency shop agreement
and an election to implement an agency fee arrangement, and (2) the
approval of a majority of employees who cast ballots and vote in a
secret ballot election in favor of the agency shop agreement. The
petition may be filed only after the recognized employee organization
has requested the employer to negotiate on an agency shop
arrangement and, beginning seven working days after the employer
received this request, the two parties have had 30 calendar days to
attempt good faith negotiations in an effort to reach agreement. An
election that shall not be held more frequently than once a year
shall be conducted by the State Mediation and Conciliation Service
with the Department of Industrial Relations in the event that the
employer and the recognized employee organization cannot agree within
10 days from the filing of the petition to select jointly a neutral
person or entity to conduct the election. In the event of an agency
fee arrangement outside of an agreement that is in effect, the
recognized employee organization shall indemnify and hold the
employer harmless against any liability arising from a claim, demand,
or other action relating to the employer's compliance with the
agency fee obligation.
(c) An individual provider who is a member of a bona fide
religion, body, or sect that has historically held conscientious
objections to joining or financially supporting public employee
organizations shall not be required to join or financially support a
public employee organization as a condition of employment. The
employee may be required, in lieu of periodic dues, initiation fees,
or agency shop fees, to pay sums equal to the dues, initiation fees,
or agency shop fees to a nonreligious, nonlabor charitable fund
exempt from taxation under Section 501(c)(3) of the Internal Revenue
Code, chosen by the employee from a list of at least three of these
funds, designated in a memorandum of understanding between the
employer and the recognized employee organization, or if the
memorandum of understanding fails to designate the funds, then to a
fund of that type chosen by the employee. Proof of the payments shall
be made on a monthly basis to the employer as a condition of
continued exemption from the requirement of financial support to the
public employee organization.
(d) An agency shop provision in a memorandum of understanding that
is in effect may be rescinded by a majority vote of all the
employees in the unit covered by the memorandum of understanding,
provided that: (1) a request for that type of vote is supported by a
petition containing the signatures of at least 30 percent of the
employees in the unit, (2) the vote is by secret ballot, and (3) the
vote may be taken at any time during the term of the memorandum of
understanding, but in no event shall there be more than one vote
taken during that term.
(e) A recognized employee organization that has agreed to an
agency shop provision or is a party to an agency shop arrangement
shall keep an adequate itemized record of its financial transactions
and shall make available annually, to the employer with which the
agency shop provision was negotiated, and to the employees who are
members of the organization, within 60 days after the end of its
fiscal year, a detailed written financial report thereof in the form
of a balance sheet and an operating statement, certified as to
accuracy by its president and treasurer or corresponding principal
officer, or by a certified public accountant. An employee
organization required to file financial reports under the federal
Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C. Sec.
401 et seq.) covering employees governed by this title, or required
to file financial reports under Section 3546.5, may satisfy the
financial reporting requirement of this section by providing the
employer with a copy of the financial reports.
110020. (a) Nothing in this title shall affect the right of an
employee to authorize a dues or service fees deduction from his or
her salary or wages pursuant to Article 6 (commencing with Section
1150) of Chapter 1 of Division 4 of Title 1.
(b) Either the Controller or the State Department of Social
Services shall deduct the payment of dues or service fees to a
recognized employee organization as required by an agency shop
arrangement between the recognized employee organization and the
Statewide Authority.
(c) Agency fee obligations, including, but not limited to, dues or
agency fee deductions on behalf of a recognized employee
organization, shall continue in effect as long as the employee
organization is the recognized bargaining representative,
notwithstanding the expiration of any agreement between the employer
and the recognized employee organization.
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.
110022. Recognized employee organizations shall have the right to
represent their members in their employment relations with the
employer. Employee organizations may establish reasonable
restrictions regarding who may join and may make reasonable
provisions for the dismissal of individuals from membership. Nothing
in this section shall prohibit an employee from appearing on his or
her own behalf in his or her employment relations with the employer.
110023. The scope of representation shall include all matters
relating to wages, benefits, and other terms and conditions of
employment. The scope of representation shall exclude the following:
(a) Functions performed by, or on behalf of, a county, which shall
include all of the following:
(1) Determining an applicant's eligibility for IHSS benefits.
(2) Assessing, approving, and authorizing an IHSS recipient's
initial and continuing need for services.
(3) Enrolling providers and conducting provider orientation.
(4) Conducting criminal background checks on all potential
providers.
(5) Providing assistance to IHSS recipients in finding eligible
providers through the establishment of a provider registry, as well
as providing orientation to recipients.
(6) Pursuing overpayment recovery recollection.
(7) Performing quality assurance activities.
(8) Performing any other function or responsibility required
pursuant to statute or regulation to be performed by the county.
(b) The right to hire, fire, and supervise the individual
provider, which is reserved to the in-home supportive services
recipient.
110024. (a) Except in cases of emergency as provided in this
section, the Statewide Authority shall give reasonable written notice
to each recognized employee organization affected by any rule,
practice, or policy directly relating to matters within the scope of
representation proposed to be adopted by the employer and shall give
each recognized employee organization the opportunity to meet with
the employer.
(b) In cases of emergency when the Statewide Authority determines
that any rule, policy, or procedure must be adopted immediately
without prior notice or meeting with a recognized employee
organization, the employer shall provide notice and an opportunity to
meet at the earliest practicable time following the adoption of the
rule, policy, or procedure.
110025. (a) Consistent with Section 12300.5 of the Welfare and
Institutions Code, the Statewide Authority shall meet and confer in
good faith regarding matters within the scope of representation with
representatives of recognized employee organizations and shall
consider fully those presentations as are made by the employee
organization on behalf of its members prior to arriving at a
determination of policy or course of action.
(b) The process should include adequate time for the resolution of
impasses pursuant to any impasse resolution procedure set forth in
this title.
110026. The Statewide Authority and employee organizations shall
not interfere with, intimidate, restrain, coerce, or discriminate
against employees because of the exercise of their rights under
Section 110002.
110027. (a) The Statewide Authority shall grant exclusive
recognition to employee organizations designated or selected pursuant
to rules established by the board for employees of the Statewide
Authority or an appropriate unit thereof, subject to the right of an
employee to represent himself or herself. The board shall establish
reasonable procedures for petitions and holding elections and
determining appropriate units consistent with Section 110008. In a
representation election, a majority of the votes cast by the
employees in the appropriate bargaining unit shall be required.
(b) A bargaining unit in existence as of the effective date of
this title shall remain in existence unless changed pursuant to
subdivision (a).
110028. If an agreement is reached by the representatives of the
Statewide Authority and a recognized employee organization or
recognized employee organizations, they shall jointly prepare a
written memorandum of the understanding, which shall not be binding,
and present it to the Legislature for determination by majority vote.
110029. (a) If, after a reasonable period of time,
representatives of the employer and the recognized employee
organization fail to reach agreement, the dispute shall be referred
to mediation before a mediator mutually agreeable to the parties. If
the parties are unable to agree upon the mediator, either party may
request the board to appoint a mediator in accordance with rules
adopted by the board.
(b) The costs of mediation shall be divided one-half to the
employer and one-half to the recognized employee organization or
recognized employee organizations.
110030. (a) If the parties are unable to effect settlement of the
controversy within 30 days after the appointment of a mediator, the
parties shall submit their differences to a factfinding panel. Within
five days after receipt of the written request, each party shall
select a person to serve as its member of the factfinding panel. The
board shall, within five days after the selection of panel members by
the parties, select a chairperson of the factfinding panel.
(b) Within five days after the board selects a chairperson of the
factfinding panel, the parties may mutually agree upon a person to
serve as chairperson in lieu of the person selected by the board.
(c) The panel shall, within 10 days after its appointment, meet
with the parties or their representatives, either jointly or
separately, and may make inquiries and investigations, hold hearings,
and take any other steps it deems appropriate. For the purpose of
the hearings, investigations, and inquiries, the panel shall have the
power to issue subpoenas requiring the attendance and testimony of
witnesses and the production of evidence. Any state agency, as
defined in Section 11000, or any political subdivision of the state,
shall furnish the panel, upon its request, with all records, papers,
and information in their possession relating to any matter under
investigation by or in issue before the panel.
(d) In arriving at their findings and recommendations, the
factfinders shall consider, weigh, and be guided by all the following
criteria:
(1) State and federal laws that are applicable to the employer.
(2) Local rules, regulations, or ordinances.
(3) Stipulations of the parties.
(4) The interests and welfare of the public and the financial
ability of the employer.
(5) Comparison of the wages, benefits, and terms and conditions of
employment of the employees involved in the factfinding proceeding
with the wages, benefits, and terms and conditions of employment of
other employees performing similar services in comparable counties.
(6) The consumer price index for goods and services, commonly
known as the cost of living.
(7) The overall compensation presently received by the employees,
including direct wage compensation, vacations, holidays, and other
excused time, insurance and pensions, medical and hospitalization
benefits, the continuity and stability of employment, and all other
benefits received.
(8) Any other facts, not confined to those specified in paragraphs
(1) to (7), inclusive, which are normally or traditionally taken
into consideration in making the findings and recommendations.
110031. (a) If the dispute is not settled within 30 days after
the appointment of the factfinding panel, or, upon agreement by both
parties within a longer period, the panel shall make findings of fact
and recommend terms of settlement, which shall be advisory only. The
factfinders shall submit, in writing, any findings of fact and
recommended terms of settlement to the parties before they are made
available to the public. The employer shall make these findings and
recommendations publicly available within 10 days after their
receipt.
(b) The costs for the services of the panel chairperson, whether
selected by the board or agreed upon by the parties, shall be equally
divided between the parties, and shall include per diem fees, if
any, and actual and necessary travel and subsistence expenses. The
per diem fees shall not exceed the per diem fees stated on the
chairperson's résumé on file with the board. The chairperson's bill
showing the amount payable by the parties shall accompany his or her
final report to the parties and the board. The chairperson may submit
interim bills to the parties in the course of the proceedings, and
copies of the interim bills shall also be sent to the board. The
parties shall make payment directly to the chairperson.
(c) Any other mutually incurred costs shall be borne equally by
the public agency and the employee organization. Any separately
incurred costs for the panel member selected by each party shall be
borne by that party.
(d) Nothing in this chapter shall be construed to prohibit the
mediator appointed pursuant to Section 110029, upon mutual agreement
of the parties, from continuing mediation efforts on the basis of the
findings of fact and recommended terms of settlement made pursuant
to Section 110031.
110032. After the applicable mediation procedure has been
exhausted, factfinding has been completed and made public, and no
resolution has been reached by the parties, the Statewide Authority
may declare an impasse and implement its last, best, and final offer.
The unilateral implementation of the Statewide Authority's last,
best, and final offer shall not deprive a recognized employee
organization of the right each year to meet and confer on matters
within the scope of representation, whether or not those matters are
included in the unilateral implementation, prior to the adoption of
the annual budget , budget or as
otherwise required by law.
110033. The Statewide Authority shall allow a reasonable number
of representatives of recognized employee organizations reasonable
time off without loss of compensation or other benefits when formally
meeting and conferring with representatives of the employer on
matters within the scope of representation.
110034. The Statewide Authority shall not do any of the
following:
(a) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because of
their exercise of rights guaranteed by this title.
(b) Deny to employee organizations the rights guaranteed to them
by this title.
(c) Refuse or fail to meet and negotiate in good faith with a
recognized employee organization. For purposes of this subdivision,
knowingly providing a recognized employee organization with
inaccurate information regarding the financial resources of the
employer, whether or not in response to a request for information,
constitutes a refusal or failure to meet and negotiate in good faith.
(d) Dominate or interfere with the formation or administration of
any employee organization, contribute financial or other support to
any employee organization, or in any way encourage employees to join
any organization in preference to another.
(e) Refuse to participate in good faith in any applicable impasse
procedure.
110035. (a) The Statewide Authority may adopt reasonable rules
and regulations for all of the following:
(1) Registering employee organizations.
(2) Determining the status of organizations and associations as
employee organizations or bona fide associations.
(3) Identifying the officers and representatives who officially
represent employee organizations and bona fide associations.
(4) Any other matters that are necessary to carry out the purposes
of this title.
(b) The board shall establish procedures whereby recognition of
employee organizations formally recognized as majority
representatives pursuant to a vote of the employees may be revoked by
a majority vote of the employees only after a period of not less
than 12 months following the date of recognition.
(c) The employer shall not unreasonably withhold recognition of
employee organizations.
(d) Employees and employee organizations may challenge a rule or
regulation of the employer as a violation of this title. This
subdivision shall not be construed to restrict or expand the board's
jurisdiction or authority as set forth in subdivisions (a) to (c),
inclusive, of Section 3541.3.
110035.5. (a) The board and the Statewide Authority may adopt
emergency regulations to implement this title. The initial adoption,
amendment, or repeal of the regulations authorized by this section is
deemed to address an emergency, for purposes of Sections 11346.1 and
11349.6, and the board and the Statewide Authority are hereby
exempted for that purpose from the requirements of subdivision (b) of
Section 11346.1. After the initial adoption, amendment, or repeal of
an emergency regulation pursuant to this section, the board and the
Statewide Authority shall not request approval from the Office of
Administrative Law to readopt the regulation as an emergency
regulation pursuant to Section 11346.1.
(b) The adoption, amendment, or repeal of a regulation authorized
by this section is hereby exempted from subdivision (d) of Section
11346.1 and Section 11349.6, and the board or Statewide Authority
shall transmit the regulations directly to the Secretary of State for
filing. The regulations shall become effective immediately upon
filing with the Secretary of State.
(c) This section shall remain in effect only until January 1,
2014, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2014, deletes or extends
that date.
110036. The provisions of this title are severable. If any
provision of this title or its application is held invalid, that
invalidity shall not affect other provisions or applications that can
be given effect without the invalid provision or application.
SEC. 4. Section 10101.1 of the Welfare and Institutions Code 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.
SEC. 5. Section 12300.5 is added to the Welfare and Institutions
Code, 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.
(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) Neither the state nor the Statewide Authority shall 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. 6. Section 12300.6 is added to the Welfare and Institutions
Code, to read:
12300.6. There is hereby created the In-Home Supportive Services
Fund in the State Treasury. Moneys in the fund shall be made
available, upon appropriation by the Legislature, to the California
In-Home Supportive Services Authority, for the purposes of funding
the functions of the Statewide Authority.
SEC. 7. Section 12300.7 is added to the Welfare and Institutions
Code, to read:
12300.7. (a) No sooner than March 1, 2013, 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 Sections 14132.275, 14182.16, and 14182.17
have been completed in that county or city and county.
(b) A county or city and county, subject to subdivision (a) and
upon notification from the Director of Health Care Services, shall do
any one of the following:
(1) Continue to have its public authority perform the functions
set forth in the county ordinance existing at the time of the
notification pursuant to subdivision (a) and established pursuant to
Section 12301.6, excluding subdivision (c) of that section.
(2) Continue to have the entity perform the functions in the
existing contract at the time of the notification pursuant to
subdivision (a) established pursuant to Section 12301.6, excluding
subdivision (c) of that section.
(3) Assume the functions performed by an entity or public
authority pursuant to Section 12301.6, excluding subdivision (c) and
paragraph (2) of subdivision (i) of that section.
(c) If a county or city and county assumes the functions described
in paragraph (3) of subdivision (b), it may do any of the following:
(1) Contract for the performance of any or all of the functions
assumed.
(2) Contract with an entity pursuant to Section 12301.6 for the
performance of any or all functions assumed.
(3) Establish a public authority pursuant to Section 12301.6 for
the performance of any functions assumed.
SEC. 8. Section 12302.6 is added to the Welfare and Institutions
Code, to read:
12302.6. (a) A managed care health plan may enter into contracts
pursuant to paragraph (14) of subdivision (a) of Section 14186.35
solely in the manner prescribed in this section and in
accordance with Section 12302.1 .
(b) For purposes of this section:
(1) "Agency" means a city, county, city and county agency, local
health district, nonprofit entity, or a proprietary agency that has
or seeks a contract to provide in-home supportive services pursuant
to Section 12302 or this article.
(2) "Contract provider" means any person employed by an agency for
the provision of services listed in this subdivision.
(3) "County" means a political unit, unless otherwise indicated.
(4) "Department" means the State Department of Social Services.
(5) "Individual provider" means any person authorized to provide
in-home supportive services under this article and Sections 14132.95,
14132.952, and 14132.956, pursuant to the individual provider mode
referenced in Section 12302.2. As used in this paragraph, "individual
provider" shall not include any person providing in-home supportive
services pursuant to a county-employed homemaker mode or any person
employed by an agency.
(6) "Individual provider rate" means the combined total rate for
wages and benefits for individual providers, as approved by the
Statewide Authority or its delegate.
(7) "Managed care health plan" shall have the same meaning as set
forth in Section 14186.1.
(8) "Qualified agency" means an agency that has been certified by
the department.
(9) "Responsible party" means an officer or director of the
applicant, a shareholder with a beneficial interest in the applicant
exceeding 10 percent, or the person who will be primarily responsible
for any contract with the managed care health plan.
(10) "Statewide Authority" means the California In-Home Supportive
Services Authority established pursuant to Section 6531
6531.5 of the Government Code.
(c) Managed care health plans shall assume the authority granted
to counties pursuant to Section 12302 to contract for the provision
of in-home
supportive services with an agency.
(1) (A) Managed care health plans shall assume the authority as
described in subdivision (a) only upon their integration into
Medi-Cal managed care pursuant to Article 5.7 (commencing with
Section 14186) of Chapter 7.
(B) If, at the time a managed care health plan assumes contracting
authority pursuant to this subdivision with respect to a particular
geographic area, there is an existing contract between the county and
an agency for the provision of in-home supportive services, the
managed care health plan shall enter into a contract with the county
to continue providing the services, and the county shall maintain its
existing contract with the agency for the provision of in-home
supportive services until such time as that contract is due to
expire. Counties that have these existing contracts with agencies at
the time a managed care health plan assumes contracting authority
pursuant to this subdivision shall automatically be certified as
qualified agencies.
(2) An agency that is a county, or has an existing contract with a
county, as of the date that the managed care health plan in the
corresponding geographic area assumes contracting authority with
respect to agencies, shall be deemed to be certified as a qualified
agency with respect to the geographic area in which the agency has a
contract to provide in-home supportive services with respect to the
type of in-home supportive services provided pursuant to that
contract. Where a county has an existing contract with an agency, the
certification provided for in this subdivision shall remain in
effect until the triennial deadline established by paragraph (3) of
subdivision (d) that occurs no less than one year after the
expiration of the contract in effect at the time that the managed
care health plan assumes contracting authority with respect to
agencies. However, if an agency that is party to such a contract
seeks to expand the geographic area in which it is certified to
provide services or seeks to expand the types of services for which
it is certified, it must submit an application in accordance with
Section 12342.3.
(d) An agency contracting with a managed care health plan for the
provision of in-home supportive services shall be certified as a
qualified agency by the department in consultation with the State
Department of Health Care Services.
(1) The certification of an agency as a qualified agency shall be
with respect to a specific geographic area and an identified category
of services.
(2) An agency seeking certification as a qualified agency shall
submit to the department a verified application showing that it
satisfies the conditions and providing the information specified. The
department shall develop the form and establish the conditions to be
met. The verified application shall include the three most recent
audited financial statements or other independently verified
documentation showing that the applicant maintains liquid assets
sufficient to cover 180 days of in-home supportive services'
operating expenses, evidence of liability and workers' compensation
insurance, and evidence that the applicant has not been the subject
of bankruptcy proceedings in the last five years.
(3) The department shall establish an annual deadline for
submitting applications for certification pursuant to this
subdivision. The department shall also establish a triennial deadline
for submitting renewals of certification pursuant to this
subdivision. The department shall process and approve or deny
applications within 120 days of receipt of a completed application.
(4) In determining whether an agency may be certified as a
qualified agency, the department, in consultation with the State
Department of Health Care Services, shall consider documents and
evidence to ensure that, among other things identified by the
department, the agency:
(A) Guarantees the continuity and reliability of services to
recipients.
(B) Guarantees the supervision of contract providers.
(C) Guarantees that each contract provider has been screened in
accordance with Sections 12305.81 and 12305.87.
(D) Guarantees that each contract provider is capable of and is
providing the service authorized.
(E) Complies with applicable rules and regulations regarding civil
rights and those rights' relations with contract providers.
(F) Is capable of providing high-quality and reliable in-home
supportive services.
(G) Is capable of complying with this section, any rules or
regulations promulgated under this section, and any applicable
federal rules and regulations.
(H) Has not demonstrated a pattern and practice of violations of
state or federal laws and regulations based on any available
information.
(5) An application for certification under this subdivision may be
denied by the department if the department determines that the
applying agency or a responsible party has violated a law or
regulation that is substantially related to the qualifications or
duties of the applying agency or is substantially related to the
functions of the business for which certification was, or is to be,
issued, or on the ground that an applying agency knowingly made a
false statement of fact required to be revealed in an application for
certification.
(6) The department shall develop a written appeal process for any
agency dissatisfied with the decision of the department regarding
certification.
(e) (1) A qualified agency shall submit verified cost reports to
the department documenting that the qualified agency is in compliance
with subdivision (i). The cost reports shall be verified by the
responsible party and by a representative of a certified public
accounting firm.
(2) The verified cost reports required by paragraph (1) shall be
submitted within 90 calendar days after the end of each year and
within 60 calendar days after any change in compensation negotiated
by the Statewide Authority for individual providers has gone into
effect.
(f) A managed care health plan that has entered into a contract in
the manner prescribed in this section shall notify the department
within 30 days if the contract between the managed care health plan
and the qualified agency is suspended or terminated for any reason.
(g) Except as provided in subdivision (h), a recipient of in-home
supportive services may only be referred to a qualified agency by the
county, managed care health plan, or care coordination teams.
Qualified agencies shall establish procedures to ensure contract
limitations on caseload are being met and there is coordination of
information between managed care health plans, qualified agencies,
counties, and the department. When a recipient has been referred to
the managed care health plan, the qualified agency may provide
services in the following circumstances:
(1) It has been determined that the recipient is unable to
function as the employer of the provider due to dementia, cognitive
impairment, or other similar issues.
(2) The recipient has been identified to need services under this
mode by the care coordination team created pursuant to paragraph (3)
of subdivision (b) of Section 14186.
(3) The recipient is unable to retain a provider due to geographic
isolation and distance, authorized hours, or other reasons.
(h) When a recipient who is severely impaired, as described in
Section 12303.4, is referred to a qualified agency by a managed care
health plan, the county, or the care coordination team, the qualified
agency may provide emergency backup services, as needed, when a
provider is unavailable due to vacation, illness, or other
extraordinary circumstances, or the recipient is in the process of
hiring or replacing a provider. Qualified agencies shall establish
procedures to ensure contract limitations on caseload are being met
and there is coordination of information between managed care health
plans, qualified agencies, counties, and the department. Service
hours provided under the emergency backup criteria shall be deducted
from the in-home supportive services recipient's current authorized
hours of services and on an hour-to-hour basis coordinated with the
county and the department to ensure hours are accurately captured and
not duplicated per in-home supportive services program requirements.
(i) Wages and benefits for contract providers for their provision
of in-home supportive services shall not be less than the individual
provider rate negotiated by the Statewide Authority for the county
where services are provided.
(j) Any contract entered into between a managed care health plan
and a qualified agency shall provide for a minimum amount of service
utilization and shall be approved by the department. In no case,
however, shall in-home supportive services recipients referred for
services exceed 5 percent of the caseload in the county where
services are provided.
(k) The department shall establish reasonable fees to be paid by
agencies and qualified agencies for administering the provisions of
this section, including, but not limited to, fees associated with
processing applications for certification and renewals of
certification, and fees associated with monitoring and enforcing
compliance, including any fees reflecting the costs associated with
investigating complaints, to the extent permissible by law. These
fees shall be sufficient to cover the department's reasonable costs
incurred in administering the provisions of this section.
(l) 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, interpret, or make specific this
section by means of all-county letters, or similar instructions,
without taking regulatory action. Prior to issuing any letter or
similar instrument authorized pursuant to this section, the
department shall notify and consult with stakeholders, including
beneficiaries, providers, and advocates.
SEC. 9. Section 12306 of the Welfare and Institutions Code 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, 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) 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.
SEC. 10. Section 12306.1 of the Welfare and Institutions Code 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.
(6) Notwithstanding paragraphs (2) to (5), inclusive, the state
shall participate as provided in subdivision (c) in a total cost of
wages up to nine dollars and fifty cents ($9.50) per hour and in
individual health benefits up to sixty cents ($0.60) per hour. This
paragraph shall become operative on July 1, 2009.
(7) (A) The Legislature finds and declares that injunctions issued
by the courts have prevented the state from implementing the changes
described in paragraph (6) during the pendency of litigation. To
avoid confusion for providers, recipients, and other stakeholders, it
is therefore the intent of the Legislature to temporarily suspend
the reductions described in that paragraph until July 1, 2012, to
allow the litigation to reach a final result.
(B) Paragraph (6) shall not be implemented until July 1, 2012, and
as of that date shall only be implemented if a court of competent
jurisdiction has issued an order, that is not subject to appeal or
for which the time to appeal has expired, upholding its validity.
(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 (6), 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.
SEC. 11. Section 12306.15 is added to the Welfare and Institutions
Code, to read:
12306.15. (a) Commencing July 1, 2012, all counties shall have a
County IHSS Maintenance of Effort (MOE). In lieu of paying the
nonfederal share of IHSS costs as specified in Sections 10101.1,
12306, and 12306.1, counties shall pay the County IHSS MOE.
(b) (1) The County IHSS MOE base year shall be the 2011-12 state
fiscal year. The County IHSS MOE base shall be defined as the amount
actually expended by each county on IHSS services and administration
in the County IHSS MOE base year, as reported by each county to the
Department of Social Services, except that for administration, the
County IHSS MOE base shall include no more or no less than the full
match for the county's allocation from the state.
(2) Administration expenditures shall include both county
administration and public authority administration. The County IHSS
MOE base shall be unique to each individual county.
(3) For a county that made 14 months of health benefit payments
for IHSS providers in the 2011-12 fiscal year, the Department of
Finance shall adjust that county's County IHSS MOE base calculation.
(4) The County IHSS MOE base for each county shall be no less than
each county's 2011-12 expenditures for the Personal Care Services
Program and IHSS used in the caseload growth calculation pursuant to
Section 17605.
(c) (1) On July 1, 2014, the County IHSS MOE base shall be
adjusted by an inflation factor of 3.5 percent.
(2) Beginning on July 1, 2015, and annually thereafter, the County
IHSS MOE from the previous year shall be adjusted by an inflation
factor of 3.5 percent.
(3) (A) Notwithstanding paragraphs (1) and (2), in fiscal years
when the combined total of 1991 realignment revenues received
pursuant to Sections 11001.5, 6051.2, and 6201.2 of the Revenue and
Taxation Code, for the prior fiscal year is less than the combined
total received for the next prior fiscal year, the inflation factor
shall be zero.
(B) The Department of Finance shall provide notification to the
appropriate legislative fiscal committees and the California State
Association of Counties by May 14 of each year whether the inflation
factor will apply for the following fiscal year, based on the
calculation in subparagraph (A).
(d) In addition to the adjustment in subdivision (c), the County
IHSS MOE shall be adjusted for the annualized cost of locally
negotiated, mediated, or imposed increases in provider wages or
health benefits.
(1) (A) If the State Department of Social Services approves the
rates and other economic terms for a locally negotiated, mediated, or
imposed increase in the provider wages, health benefits, or other
economic terms pursuant to Section 12306.1 and paragraph (3), the
state shall pay 65 percent, and each county shall pay 35 percent, of
the nonfederal share of the cost increase.
(B) The county share of these expenditures shall be included in
the County IHSS MOE, in addition to the amount established under
subdivisions (b) and (c). For any increase in provider wages or
health benefits that becomes effective on a date other than July 1,
the Department of Finance shall adjust the county's County IHSS MOE
to reflect the annualized cost of the county's share of the
nonfederal cost of the wage or health benefit increase.
(2) (A) If the State Department of Social Services does not
approve the rates and other economic terms for a locally negotiated,
mediated, or imposed increase in the provider wages, health benefits,
or other economic terms pursuant to Section 12306.1 or paragraph
(3), the county shall pay the entire nonfederal share of the cost
increase.
(B) The county share of these expenditures shall be included in
the County IHSS MOE, in addition to the amount established under
subdivisions (b) and (c). For any increase in provider wages or
health benefits that becomes effective on a date other than July 1,
the Department of Finance shall adjust the county's County IHSS MOE
to reflect the annualized cost of the county's share of the
nonfederal cost of the wage or health benefit increase.
(3) In addition to the rate approval requirements in Section
12306.1, it shall be presumed by the State Department of Social
Services that negotiated rates and other economic terms within the
following limits are approved:
(A) A net increase in the combined total of wages and health
benefits of up to 10 percent above the current combined total of
wages and health benefits paid in that county.
(B) A cumulative total of up to 20 percent in the sum of the
combined total of changes in wages or health benefits, or both, until
the Statewide Authority assumes the responsibilities set forth in
Section 110011 of the Government Code for a given county as provided
in Section 12300.7.
(e) The County IHSS MOE shall only be adjusted pursuant to
subdivisions (c) and (d).
(f) If the demonstration project and the responsibilities of the
Statewide Authority become inoperative pursuant to Section 15 or
17 of the act adding this section on a date other than July 1,
this section shall become inoperative on the first day of the
following state fiscal year.
SEC. 12. Section 12330 is added to the Welfare and Institutions
Code, to read:
12330. (a) No later than January 1, 2014, the State Department of
Social Services, in consultation with the department, and in
collaboration with stakeholders including, but not limited to, IHSS
recipients and recognized employee representatives, shall develop a
training curriculum for IHSS providers that shall address issues of
consistency, accountability, and increased quality of care for IHSS
recipients.
(b) Participation in the training developed pursuant to
subdivision (a) shall be voluntary.
(c) Nothing in this section shall require
that training be funded by the state.
(d) This section shall not be construed to preclude a managed care
health plan, as part of the care coordination team, from developing
recipient-specific voluntary training curriculum for an IHSS provider
who has been integrated into a beneficiary's care coordination team.
(e) The IHSS recipient shall continue to have the right to train
his or her individual provider.
SEC. 13. Section 14186.35 is added to the Welfare and Institutions
Code, 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) Retain recipients' right to be the employer, to select,
engage, direct, supervise, schedule, and terminate IHSS providers in
accordance with Section 12301.6.
(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 and subject to the
consumer's consent, that shall include county IHSS social workers,
consumers and their representatives, managed care health plans, and
may include IHSS providers and others as applicable, for individual
care plan development. For individuals identified to participate in
care coordination, managed care health plans shall include the
consumer or his or her authorized representative, or both, health
plan, county IHSS staff if the consumer is an IHSS recipient,
Community-Based Adult Services (CBAS) and Multipurpose Senior
Services Program (MSSP) case managers if the consumer is a CBAS or
MSSP client, 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 subdivision (a) of Section 12300.7 for that
county.
(B) Following the notification pursuant to 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
and benefits.
(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.
A county may contract with a nonprofit consortium, 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 to IHSS providers in accordance with the wages
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
Department of Social Services 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, 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 Sections 12302 and 12302.1.
(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.
(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 subdivisions (a) and (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.
(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.
SEC. 14. Section 14186.36 is added to the Welfare and Institutions
Code, to read:
14186.36. (a) It is the intent of the Legislature that a
universal assessment process for LTSS be developed and tested. The
initial uses of this tool may inform future decisions about whether
to amend existing law regarding the assessment processes that
currently apply to LTSS programs, including IHSS.
(b) (1) In addition to the activities set forth in paragraph (9)
of subdivision (a) of Section 14186.35, county agencies shall
continue IHSS assessment and authorization processes, including
making final determinations of IHSS hours pursuant to Article 7
(commencing with Section 12300) of Chapter 3 and regulations
promulgated by the State Department of Social Services.
(2) No sooner than January 1, 2015, for the counties and
beneficiary categories specified in subdivision (e), counties shall
also utilize the universal assessment tool, as described in
subdivision (c), if one is available and upon completion of the
stakeholder process, system design and testing, and county training
described in subdivisions (c) and (e), for the provision of IHSS
services. This paragraph shall only apply to beneficiaries who
consent to the use of the universal assessment process. The managed
care health plans shall be required to cover IHSS services based on
the results of the universal assessment process specified in this
section.
(c) (1) No later than June 1, 2013, the department, the State
Department of Social Services, and the California Department of Aging
shall establish a stakeholder workgroup to develop the universal
assessment process, including a universal assessment tool, for home-
and community-based services, as defined in subdivision (a) of
Section 14186.1. The stakeholder workgroup shall include, but not be
limited to, consumers of IHSS and other home- and community-based
services and their authorized representatives, managed care health
plans, counties, IHSS, MSSP, and CBAS providers, and legislative
staff. The universal assessment process shall be used for all home-
and community-based services, including IHSS. In developing the
process, the workgroup shall build upon the IHSS uniform assessment
process and hourly task guidelines, the MSSP assessment process, and
other appropriate home- and community-based assessment tools.
(2) (A) In developing the universal assessment process, the
departments described in paragraph (1) shall develop a universal
assessment tool that will inform the universal assessment process and
facilitate the development of plans of care based on the individual
needs of the consumer. The workgroup shall consider issues including,
but not limited to, the following:
(i) The roles and responsibilities of the health plans, counties,
and home- and community-based services providers administering the
assessment.
(ii) The criteria for reassessment.
(iii) How the results of new assessments would be used for the
oversight and quality monitoring of home- and community-based
services providers.
(iv) How the appeals process would be affected by the assessment.
(v) The ability to automate and exchange data and information
between home- and community-based services providers.
(vi) How the universal assessment process would incorporate
person-centered principles and protections.
(vii) How the universal assessment process would meet the
legislative intent of this article and the goals of the demonstration
project pursuant to Section 14132.275.
(viii) The qualifications for, and how to provide guidance to, the
individuals conducting the assessments.
(B) The workgroup shall also consider how this assessment may be
used to assess the need for nursing facility care and divert
individuals from nursing facility care to home- and community-based
services.
(d) No later than March 1, 2014, the department, the State
Department of Social Services, and the California Department of Aging
shall report to the Legislature on the stakeholder workgroup's
progress in developing the universal assessment process, and shall
identify the counties and beneficiary categories for which the
universal assessment process may be implemented pursuant to
subdivision (e).
(e) (1) No sooner than January 1, 2015, upon completion of the
design and development of a new universal assessment tool, managed
care health plans, counties, and other home- and community-based
services providers may test the use of the tool for a specific and
limited number of beneficiaries who receive or are potentially
eligible to receive home- and community-based services pursuant to
this article in no fewer than two, and no more than four, of the
counties where the provisions of this article are implemented, if the
following conditions have been met:
(A) The department has obtained any federal approvals through
necessary federal waivers or amendments, or state plan amendments,
whichever is later.
(B) The system used to calculate the results of the tool has been
tested.
(C) Any entity responsible for using the tool has been trained in
its usage.
(2) To the extent the universal assessment tool or universal
assessment process results in changes to the authorization process
and provision of IHSS services, those changes shall be automated in
the Case Management Information and Payroll System.
(3) The department shall develop materials to inform consumers of
the option to participate in the universal assessment tool testing
phase pursuant to this paragraph.
(f) The department, the State Department of Social Services, and
the California Department of Aging shall implement a rapid-cycle
quality improvement system to monitor the implementation of the
universal assessment process, identify significant changes in
assessment results, and make modifications to the universal
assessment process to more closely meet the legislative intent of
this article and the goals of the demonstration project pursuant to
Section 14132.275.
(g) Until existing law relating to the IHSS assessment process
pursuant to Article 7 (commencing with Section 12300) of Chapter 3 is
amended, beneficiaries shall have the option to request an
additional assessment using the previous assessment process for those
home- and community-based services and to receive services according
to the results of the additional assessment.
(h) No later than nine months after the implementation of the
universal assessment process, the department, the State Department of
Social Services, and the California Department of Aging, in
consultation with stakeholders, shall report to the Legislature on
the results of the initial use of the universal assessment process,
and may identify proposed additional beneficiary categories or
counties for expanded use of this process and any necessary changes
to provide statutory authority for the continued use of the universal
assessment process. These departments shall report annually
thereafter to the Legislature on the status and results of the
universal assessment process.
(i) The provisions of this section shall remain operative only
until July 1, 2017.
SEC. 15. (a) In the event the department has not received, by
February 1, 2013, federal approval, or notification indicating
pending approval, of a mutual ratesetting process, shared federal
savings, and a six-month enrollment period in the demonstration
project pursuant to Section 14132.275 of the Welfare and
Institutions Code , effective March 1, 2013, this act shall
become inoperative, the amendments made to the sections amended by
this act shall be inoperative, and the sections added by this act
shall be inoperative. The director shall execute a declaration
attesting to these facts and post it on the department's Internet Web
site.
(b) For purposes of this section, "shared federal savings" means a
methodology that meets the conditions of paragraphs (1) and (2), or
paragraph (3).
(1) The state and the federal Centers for Medicare and Medicaid
Services share in the combined savings for Medicare and Medi-Cal, as
estimated in the Budget Act of 2012 for the 2012-13, 2013-14,
2014-15, and 2015-16 fiscal years.
(2) Federal approval for the provisions of Section 14132.275
of the Welfare and Institutions Code regarding the requirement
that, upon enrollment in a demonstration site, specified
beneficiaries shall remain enrolled on a mandatory basis for six
months from the date of initial enrollment.
(3) An alternate methodology that, in the determination of the
Director of Finance, in consultation with the Director of Health Care
Services and the Joint Legislative Budget Committee, will result in
the same level of ongoing savings, as estimated in the Budget Act of
2012 for the 2012-13, 2013-14, 2014-15, and 2015-16 fiscal years.
SEC. 16. In the event that the conditions set forth in Section 10
of Assembly Bill 1468 or Senate Bill 1008 of the 2011-2012
2011-12 Regular Session of the Legislature are
not met as described and the provisions of law set forth in Section
10 of those bills become inoperative, Sections 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 as added by this act shall become inoperative as of
March 1, 2013.
SEC. 17. In the event the director decides to entirely forego the
provision of services as specified in Section 14186.4 of the
Welfare and Institutions Code , Section 6531
6531.5 of the Government Code and Sections 12300.5,
12300.6 , and 12300.7 of the Welfare and Institutions Code
as added by this act shall cease to be implemented except as
follows:
(a) For an 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 as
added by this act, and 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.
(b) 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.
SEC. 18. If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.
SEC. 19. The sum of one thousand dollars ($1,000) is hereby
appropriated from the General Fund to the State Department of Health
Care Services for administration.
SEC. 20. This act shall become operative only if Assembly Bill
1468 or Senate Bill 1008 of the 2011-12 Regular Session of the
Legislature is enacted and takes effect.
SEC. 21. This act is a bill providing for appropriations related
to the Budget Bill within the meaning of subdivision (e) of Section
12 of Article IV of the California Constitution, has been identified
as related to the budget in the Budget Bill, and shall take effect
immediately.