Amended  IN  Senate  April 03, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill No. 1040

Introduced by Senator Dodd

February 08, 2018

An act to amend Sections 34052 and 34054 of the Health and Safety Code, to amend Section 12300 12301.1 of, and to add Sections 12304.41 12304.41, 12305.88, and 12312 to, the Welfare and Institutions Code, relating to in-home supportive services.


LEGISLATIVE COUNSEL'S DIGEST


SB 1040, as amended, Dodd. In-home supportive services: natural disaster resulting in a state of emergency. disaster.
(1) Existing law establishes the In-Home Supportive Services (IHSS) program, administered by the State Department of Social Services and counties, under which qualified aged, blind, and disabled persons are provided with supportive services, as defined, in order to permit them to remain in their own homes. The California Emergency Services Act authorizes the Governor to declare a state of emergency under specified conditions and requires a county, including a city and county, to update its emergency plan to address, among other things, how the access and functional needs population, as defined, is served by emergency communications, evacuation, and sheltering.

This bill would expand the definition of “supportive services” to include all needs and services required during a natural disaster resulting in a declared state of emergency, and authorize, under those same circumstances, a county to allocate additional hours of supportive services, as specified. The

This bill would require a county to use a void and reissue warrant process for any provider who lost or had damaged an uncashed warrant because of a natural disaster resulting in a state of emergency. The bill would require a county, including a city and county, at the next update to its emergency plan, to integrate and require the assessment and provision of supportive services to IHSS recipients. By
(2) Existing law establishes the Predevelopment Loan Fund for the purpose of making predevelopment loans and land purchase loans to eligible sponsors, as defined, for assisted housing for occupancy primarily by persons of low income. Existing law requires the Department of Housing and Community Development to award those funds to provide disaster relief in communities subject to a natural disaster, if the funds have been made available for that purpose. Existing law requires those funds to be used for housing persons of low income and moderate income, with first priority given to funding housing for persons of low and moderate income. Existing law also requires the funds to be expended only for rehabilitation or reconstruction of housing and related infrastructure that has been damaged as a result of a natural disaster.
This bill would require first priority for those funds in providing disaster relief to also be given to fund housing for IHSS recipients and for remediation and restoration necessary to return the IHSS recipient to his or her home that has been damaged by a natural disaster.
(3) Existing law requires a county welfare department to establish an IHSS recipient’s weekly authorized number of hours of services, pursuant to a specified formula. Under existing law, the county welfare department may temporarily adjust the authorized weekly hours of a recipient at the request of the recipient to accommodate unexpected extraordinary circumstances.
This bill would specify that the extraordinary circumstance may include a situation arising out of a natural disaster.
(4) Existing law requires all prospective IHSS providers to complete a provider orientation at the time of enrollment and requires the applicant to sign a statement specifying, among other things, that the provider has attended the orientation and understands that failure to comply with the program rules and requirements may result in the provider being terminated from providing services. Existing law requires a county to investigate the criminal background of a person who seeks to become an IHSS provider, and upon notice that the applicant has been convicted of specified crimes, to deny the application. Existing law prohibits a person from providing, or receiving payment for providing, supportive services for 10 years following a conviction or incarceration for fraud against a government health care or supportive services program, or for a conviction or incarceration for a violent or serious felony, as defined.
This bill would authorize a person who has not yet completed the orientation and enrollment requirements, or for whom a criminal background check has not yet been completed, but who is providing services to a recipient, to be paid for services rendered to that recipient, for a period not to exceed 3 months, if the county welfare department has approved the services by that provider and a natural disaster resulting in a declared state of emergency has left the recipient without his or her preferred provider.
(5) By increasing the duties of counties, this bill would impose a state-mandated local program.

(2)

(6) 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 the statutory provisions noted above.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 This act shall be known as the “In-Home Supportive Services Emergency Preparedness, Response, and Consumer Safety Act.”

SEC. 2.

 The Legislature finds and declares all of the following:
(a) In-home supportive services (IHSS) consumers have unique and specific needs for which they are statutorily entitled to care and service with dignity.
(b) During a natural disaster resulting in the declaration of a state of emergency, there is currently no comprehensive statewide approach or mandate in relation to how much additional supportive services are required to be provided to IHSS consumers, or even that additional supportive services are required to be provided at all.
(c) The lack of a comprehensive statewide approach or mandate leaves IHSS consumers unacceptably vulnerable.
(d) The unique and specific needs of IHSS consumers during a natural disaster resulting in the declaration of a state of emergency may require the provision of additional hours of supportive services, as determined by county social workers, and the Legislature, in past circumstances, has found that the provision of additional hours of supportive services to IHSS consumers was appropriate and necessary. workers.
SEC. 3.Section 12300 of the Welfare and Institutions Code is amended to read:
12300.

(a)The purpose of this article is to provide in every county in a manner consistent with this chapter and the annual Budget Act those supportive services identified in this section to aged, blind, or disabled persons, as defined under this chapter, who are unable to perform the services themselves and who cannot safely remain in their homes or abodes of their own choosing unless these services are provided.

(b)Supportive services shall include domestic services and services related to domestic services, heavy cleaning, personal care services, accompaniment by a provider when needed during necessary travel to health-related appointments or to alternative resource sites, yard hazard abatement, protective supervision, teaching and demonstration directed at reducing the need for other supportive services, paramedical services which make it possible for the recipient to establish and maintain an independent living arrangement, and all needs and services required during a natural disaster resulting in a declared state of emergency.

(c)Personal care services shall mean all of the following:

(1)Assistance with ambulation.

(2)Bathing, oral hygiene, and grooming.

(3)Dressing.

(4)Care and assistance with prosthetic devices.

(5)Bowel, bladder, and menstrual care.

(6)Repositioning, skin care, range of motion exercises, and transfers.

(7)Feeding and assurance of adequate fluid intake.

(8)Respiration.

(9)Assistance with self-administration of medications.

(d)Personal care services are available if these services are provided in the beneficiary’s home and other locations as may be authorized by the director. Among the locations that may be authorized by the director under this paragraph is the recipient’s place of employment if all of the following conditions are met:

(1)The personal care services are limited to those that are currently authorized for a recipient in the recipient’s home and those services are to be utilized by the recipient at the recipient’s place of employment to enable the recipient to obtain, retain, or return to work. Authorized services utilized by the recipient at the recipient’s place of employment shall be services that are relevant and necessary in supporting and maintaining employment. However, workplace services shall not be used to supplant any reasonable accommodations required of an employer by the Americans with Disabilities Act (42 U.S.C. Sec. 12101 et seq.; ADA) or other legal entitlements or third-party obligations.

(2)The provision of personal care services at the recipient’s place of employment shall be authorized only to the extent that the total hours utilized at the workplace are within the total personal care services hours authorized for the recipient in the home. Additional personal care services hours may not be authorized in connection with a recipient’s employment.

(e)When supportive services are provided by a person having the legal duty pursuant to the Family Code to provide for the care of his or her child who is the recipient, the provider of supportive services shall receive remuneration for the services only when the provider leaves full-time employment or is prevented from obtaining full-time employment because no other suitable provider is available and where the inability of the provider to provide supportive services may result in inappropriate placement or inadequate care.

These providers shall be paid only for the following:

(1)Services related to domestic services.

(2)Personal care services.

(3)Accompaniment by a provider when needed during necessary travel to health-related appointments or to alternative resource sites.

(4)Protective supervision only as needed because of the functional limitations of the child.

(5)Paramedical services.

(f)To encourage maximum voluntary services, so as to reduce governmental costs, respite care shall also be provided. Respite care is temporary or periodic service for eligible recipients to relieve persons who are providing care without compensation.

(g)A person who is eligible to receive a service or services under an approved federal waiver authorized pursuant to Section 14132.951, or a person who is eligible to receive a service or services authorized pursuant to Section 14132.95, shall not be eligible to receive the same service or services pursuant to this article. In the event that the waiver authorized pursuant to Section 14132.951, as approved by the federal government, does not extend eligibility to all persons otherwise eligible for services under this article, or does not cover a service or particular services, or does not cover the scope of a service that a person would otherwise be eligible to receive under this article, those persons who are not eligible for services, or for a particular service under the waiver or Section 14132.95 shall be eligible for services under this article.

(h)(1)All services provided pursuant to this article shall be equal in amount, scope, and duration to the same services provided pursuant to Section 14132.95, including any adjustments that may be made to those services pursuant to subdivision (e) of Section 14132.95.

(2)Notwithstanding any other provision of this article, the rate of reimbursement for in-home supportive services provided through any mode of service shall not exceed the rate of reimbursement established under subdivision (j) of Section 14132.95 for the same mode of service unless otherwise provided in the annual Budget Act.

(3)(A)Except as provided in subparagraph (B), the maximum number of hours available under Section 14132.95, Section 14132.951, and this section, combined, shall be 283 hours per month. Any recipient of services under this article shall receive no more than the applicable maximum specified in Section 12303.4.

(B)Notwithstanding subparagraph (A), in the situation of a natural disaster resulting in a declared state of emergency, additional assessed hours may be allocated, as determined by the county.

SEC. 3.

 Section 34052 of the Health and Safety Code is amended to read:

34052.
 For the purpose of providing disaster relief in communities subject to a natural disaster, the department shall award funds pursuant to Chapter 3.5 (commencing with Section 50530) of Part 2 of Division 31 if funds have been made available for this purpose. Notwithstanding subdivision (b) of Section 50531, funds shall be used for housing for persons of low and moderate income, including persons who are recipients of in-home supportive services, with first priority given to funding housing for persons of low income. income, including recipients of in-home supportive services.

SEC. 4.

 Section 34054 of the Health and Safety Code is amended to read:

34054.
 Funds appropriated for the purposes of Section 34052, 34052 shall only be expended for rehabilitation or reconstruction of housing and related infrastructure which infrastructure, including, in the case of a recipient of in-home supportive services, remediation and restoration of housing and infrastructure necessary to return the recipient to his or her home, that has been damaged as a result of the natural disaster.

SEC. 5.

 Section 12301.1 of the Welfare and Institutions Code is amended to read:

12301.1.
 (a) The department shall adopt regulations establishing a uniform range of services available to all eligible recipients based upon individual needs. The availability of services under these regulations is subject to the provisions of Section 12301 and county plans developed pursuant to Section 12302.
(b) (1) The county welfare department shall assess each recipient’s continuing monthly need for in-home supportive services at varying intervals as necessary, but at least once every 12 months. The results of this assessment of monthly need for hours of in-home supportive services shall be divided by 4.33, to establish a recipient’s weekly authorized number of hours of in-home supportive services, subject to any of the following, as applicable:
(A) Within the limit of the assessed monthly need for hours of in-home supportive services, a county welfare department may adjust the authorized weekly hours of a recipient for any particular week for known recurring or periodic needs of the recipient.
(B) Within the limit of the assessed monthly need for hours of in-home supportive services, a county welfare department may temporarily adjust the authorized weekly hours of a recipient at the request of the recipient, to accommodate unexpected extraordinary circumstances. circumstances, including, but not limited to, a situation arising out of a natural disaster.
(C) In addition to the flexibility provided to a recipient pursuant to subparagraph (C) of paragraph (4) of subdivision (b) of Section 12300.4, a recipient may request the county welfare department to adjust his or her weekly authorized hours of services to exceed 40 hours of weekly authorized hours of services per week, within his or her total monthly authorized hours of services. A request for adjustment may be made retroactive to the hours actually worked. The county welfare department shall not unreasonably withhold approval of a recipient request made pursuant to this subparagraph.
(2) For purposes of subparagraph (C) of paragraph (1), and prior to its implementation, the State Department of Social Services shall develop a process for requests made pursuant to that subparagraph. The process shall include all of the following:
(A) The procedure, standards, and timeline for making a request to adjust the authorized weekly hours of service for a recipient described in this section.
(B) The language to be used for notices about the process.
(C) Provisions for adjustments to authorization, and for authorization after services have been provided, when the criteria for approval have been met.
(D) A requirement that the opportunity for a revision to the limitations of this section shall be discussed at each annual reassessment, and also may be authorized by the county welfare department outside of the reassessment process.
(3) Recipients shall be timely informed of their total monthly and weekly authorized hours.
(4) The weekly authorization of services defined in this section shall be used solely for the purposes of ensuring compliance with the federal Fair Labor Standards Act and its implementing regulations.
(5) 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 subdivision by means of all-county letters, or similar instructions, without taking any regulatory action.
(c) (1) Notwithstanding subdivision (b), at the county’s option, assessments may be extended, on a case-by-case basis, for up to six months beyond the regular 12-month period, provided that the county documents that all of the following conditions exist:
(A) The recipient has had at least one reassessment since the initial program intake assessment.
(B) The recipient’s living arrangement has not changed since the last annual reassessment and the recipient lives with others, or has regular meaningful contact with persons other than his or her service provider.
(C) The recipient or, if the recipient is a minor, his or her parent or legal guardian, or if incompetent, his or her conservator, is able to satisfactorily direct the recipient’s care.
(D) There has not been a known change in the recipient’s supportive service needs within the previous 24 months.
(E) A report has not been made to, and there has been no involvement of, an adult protective services agency or agencies since the county last assessed the recipient.
(F) The recipient has not had a change in provider or providers for at least six months.
(G) The recipient has not reported a change in his or her need for supportive services that requires a reassessment.
(H) The recipient has not been hospitalized within the last three months.
(2) If some, but not all, of the conditions specified in paragraph (1) are met, the county may consider other factors in determining whether an extended assessment interval is appropriate, including, but not limited to, involvement in the recipient’s care of a social worker, case manager, or other similar representative from another human services agency, such as a regional center or county mental health program, or communications, or other instructions from a physician or other licensed health care professional that the recipient’s medical condition is unlikely to change.
(3) A county may reassess a recipient’s need for services at a time interval of less than 12 months from a recipient’s initial intake or last assessment if the county social worker has information indicating that the recipient’s need for services is expected to decrease in less than 12 months.
(d) A county shall assess a recipient’s need for supportive services any time that the recipient notifies the county of a need to adjust the supportive services hours authorized, or if there are other indications or expectations of a change in circumstances affecting the recipient’s need for supportive services.
(e) (1) Notwithstanding the rulemaking provisions of the Administrative Procedure Act, Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, until emergency regulations are filed with the Secretary of State, the department may implement this section through all-county letters or similar instructions from the director. The department shall adopt emergency regulations implementing this section no later than September 30, 2005, unless notification of a delay is made to the Chair of the Joint Legislative Budget Committee prior to that date. The notification shall include the reason for the delay, the current status of the emergency regulations, a date by which the emergency regulations shall be adopted, and a statement of need to continue use of all-county letters or similar instructions. The adoption of emergency regulations shall not be delayed, or the use of all-county letters or similar instructions be extended, beyond June 30, 2006.
(2) The adoption of regulations implementing this section shall be deemed an emergency and necessary for the immediate preservation of the public peace, health, safety, or general welfare. The emergency regulations authorized by this section are exempt from review by the Office of Administrative Law. The emergency regulations authorized by this section shall be submitted to the Office of Administrative Law for filing with the Secretary of State and shall remain in effect for no more than 180 days by which time final regulations shall be adopted. The department shall seek input from the entities listed in Section 12305.72 when developing all-county letters or similar instructions and the regulations.

SEC. 4. SEC. 6.

 Section 12304.41 is added to the Welfare and Institutions Code, to read:

12304.41.
 If a natural disaster has resulted in a declared state of emergency, affected counties shall use a void and reissue warrant process for any provider who lost or had damaged an uncashed warrant because of the natural disaster. When reissuing the uncashed warrant, a county shall verify the provider’s current mailing address and update the mailing address in the Case Management Information and Payroll System to ensure that the reissued warrant will be mailed to the provider’s current address.

SEC. 7.

 Section 12305.88 is added to the Welfare and Institutions Code, to read:

12305.88.
 Notwithstanding Sections 12305.81 and 12305.87, a person who has not yet completed the orientation and enrollment requirements pursuant to Section 12301.24, or for whom a criminal background check has not yet been completed pursuant to Section 12305.86, but who is providing services to a recipient, may be paid for services rendered to that recipient, for a period not to exceed three months, if both of the following conditions are met:
(a) The county welfare department has approved the services by that provider.
(b) A natural disaster resulting in a declared state of emergency has left the recipient without his or her preferred provider.

SEC. 5.SEC. 8.

 Section 12312 is added to the Welfare and Institutions Code, to read:

12312.
 A county, including a city and county, shall, upon the next update to its emergency plan, integrate and require the assessment and provision of supportive services to in-home supportive services (IHSS) recipients, including, but not limited to, the following requirements:

(1)County social workers trained in IHSS assessment to be onsite at emergency response facilities.

(a) Protocols and authorization for county social workers to make expedited assessments of the needs of current and potential IHSS recipients during times of a natural disaster.

(2)

(b) Protocols to ascertain identification and needs of IHSS recipients. ensure that authorized services will continue to be provided to recipients during times of displacement resulting from a natural disaster.

(3)

(c) Protocols to address any specific and unique needs of IHSS recipients that have not previously been addressed in the county’s or the city and county’s emergency plan pursuant to 8593.3 of the Government Code.

SEC. 6.SEC. 9.

 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.