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AB-924 In-home supportive services.(2019-2020)

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Date Published: 02/20/2019 09:00 PM
AB924:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 924


Introduced by Assembly Member Voepel

February 20, 2019


An act to amend Sections 12300.4 and 12301.1 of the Welfare and Institutions Code, relating to public social services.


LEGISLATIVE COUNSEL'S DIGEST


AB 924, as introduced, Voepel. In-home supportive services.
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 services in order to permit them to remain in their own homes. Existing law requires the county welfare department to assess each recipient’s continuing monthly need for in-home supportive services at varying intervals as necessary, but at least once every 12 months, and requires the monthly needs assessment to be divided by 4.33 to establish a recipient’s weekly authorized number of hours, subject to specified adjustments. Existing law requires that in-home supportive services and waiver personal care services be performed by providers within a workweek, as defined, that does not exceed 66 hours per week, as reduced by a specified net percentage, and specifies that there are bimonthly payroll periods.
This bill would instead require the county welfare department to measure each recipient’s continuing need for supportive services on a weekly basis for purposes of its required assessment of the recipient’s continuing need, and would specify that a “payroll period” means 2 workweeks. The bill would make other technical, nonsubstantive changes.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.

 Section 12300.4 of the Welfare and Institutions Code is amended to read:

12300.4.
 (a) Notwithstanding any other law, including, but not limited to, Chapter 10 (commencing with Section 3500) of Division 4 of Title 1 of the Government Code and Title 23 (commencing with Section 110000) of the Government Code, a recipient who is authorized to receive in-home supportive services pursuant to this article, or Section 14132.95, 14132.952, or 14132.956, administered by the State Department of Social Services, or waiver personal care services pursuant to Section 14132.97, administered by the State Department of Health Care Services, or any combination of these services, shall direct these authorized services, and the authorized services shall be performed by a provider or providers within a workweek and in a manner that complies with the requirements of this section.
(b) (1) (A) A workweek is defined as beginning at 12:00 a.m. on Sunday and includes the next consecutive 168 hours, terminating at 11:59 p.m. the following Saturday.
(B) For purposes of this article, and notwithstanding any other law, “payroll period” means two workweeks.
(2) A provider of services specified in subdivision (a) shall not work a total number of hours within a workweek that exceeds 66, as reduced by the net percentage defined by Sections 12301.02 and 12301.03, as applicable, and in accordance with subdivision (d). The total number of hours worked within a workweek by a provider is defined as the sum of the following:
(A) All hours worked providing authorized services specified in subdivision (a).
(B) Travel time time, as defined in subdivision (f), only if federal financial participation is not available to compensate for that travel time. If federal financial participation is available for travel time as defined in subdivision (f), the travel time shall not be included in the calculation of the total weekly hours worked within a workweek.
(3) (A) If the authorized in-home supportive services of a recipient cannot be provided by a single provider as a result of the limitation specified in paragraph (2), it is the responsibility of the recipient to employ an additional provider or providers, as needed, to ensure his or her their authorized services are provided within his or her their total weekly authorized hours of services established pursuant to subdivision (b) of Section 12301.1.
(B) (i) It is the intent of the Legislature that this section not result in reduced services authorized to recipients of waiver personal care services defined services, as described in subdivision (a).
(ii) The State Department of Health Care Services shall work with and assist recipients receiving services pursuant to the Nursing Facility/Acute Hospital Waiver or the In-Home Operations Waiver, or their successors, who are at or near their individual cost cap, as that term is used in the waivers, to avoid a reduction in the recipient’s services that may result because of increased overtime pay for providers. As part of this effort, the department shall consider allowing the recipient to exceed the individual cost cap, if appropriate, and authorize exemptions as set forth in subdivision (e) of Section 14132.99. The department shall provide timely information to waiver recipients as to the steps that will be taken to implement this clause.
(4) (A) A provider shall inform each of his or her their recipients of the number of hours that the provider is available to work for that recipient, in accordance with this section.
(B) A recipient, his or her their authorized representative, or any other entity, including any person or entity providing services pursuant to Section 14186.35, shall not authorize any provider to work hours that exceed the applicable limitation or limitations of this section.
(C) A recipient may authorize a provider to work hours in excess of the recipient’s weekly authorized hours established pursuant to Section 12301.1 without notification of the county welfare department, in accordance with both of the following: department if the
(i)The authorization does not result in more than 40 hours of authorized services per week being provided.

(ii)The authorization does not exceed the recipient’s authorized hours of monthly services pursuant to paragraph (1) of subdivision (b) of Section 12301.1.

(5) For providers of in-home supportive services, the State Department of Social Services or a county may terminate the provider from providing services under the IHSS program if a provider continues to violate the limitations of this section on multiple occasions.
(c) Notwithstanding any other law, only federal law and regulations regarding overtime compensation apply to providers of services defined described in subdivision (a).
(d) A provider of services defined described in subdivision (a) is subject to all of the following, as applicable to his or her their situation:
(1) (A) A provider who works for one individual recipient of those services shall not work a total number of hours within a workweek that exceeds 66 hours, as reduced by the net percentage defined by Sections 12301.02 and 12301.03, as applicable. In no circumstance shall the The provision of these services by that provider to the individual recipient shall not exceed the total weekly hours of the services authorized to that recipient, except as additionally authorized pursuant to subparagraph (C) of paragraph (4) of subdivision (b). If multiple providers serve the same recipient, it shall continue to be the responsibility of that recipient or his or her their authorized representative to schedule the work of his or her their providers to ensure the authorized services of the recipient are provided in accordance with this section.
(B) When If a recipient’s weekly authorized hours are adjusted pursuant to subparagraph (C) of paragraph (1) of subdivision (b) of Section 12301.1 and exceed 66 hours, as reduced by the net percentage defined by Sections 12301.02 and 12301.03, as applicable, and at the time of adjustment the recipient currently receives all authorized hours of service from one provider, that provider shall be deemed authorized to work the recipient’s county-approved adjusted hours for that week, but only if the additional hours of work, based on the adjustment, do not exceed the total number of hours worked that are compensable at an overtime pay rate that the provider would have been authorized to work in that month if the weekly hours had not been adjusted.
(2) A provider of in-home supportive services described in subdivision (a) who serves multiple recipients is not authorized to, and shall not, work more than 66 total hours in a workweek, as reduced by the net percentage defined by Sections 12301.02 and 12301.03, as applicable, regardless of the number of recipients for whom the provider provides services authorized by subdivision (a). Providers are subject to the limits of each recipient’s total authorized weekly hours of in-home supportive services described in subdivision (a), except as additionally authorized pursuant to subparagraph (C) of paragraph (4) of subdivision (b).
(3) Notwithstanding paragraph (2), the 66-hour workweek limit described in subdivision (b) does not apply to a provider of in-home supportive services described in subdivision (a), and a recipient of those services may receive those services from a requested provider, if the provider has an approved exemption exemption, as set forth in subparagraph (A) or (B). A provider who has an approved exemption pursuant to subparagraph (A) or (B) shall not work a total number of hours in excess of 360 hours per month combined for the recipients of in-home supportive services served by that provider and may not exceed any recipient’s monthly authorized hours. provider.
(A) A provider is eligible for an exemption if he or she they met all of the following on or before January 31, 2016:
(i) He or she They provided services to two or more recipients of in-home supportive services described in subdivision (a).
(ii) He or she They lived in the same home as all of the recipients for whom he or she they provided services.
(iii) He or she is They are related, biologically, by adoption, or as a foster caregiver, legal guardian, or conservator, to all of the recipients for whom he or she they provides services as the recipients’ parent, stepparent, foster or adoptive parent, grandparent, legal guardian, or conservator.
(B) A provider is eligible for an exemption if he or she provides they provide services to two or more recipients of in-home supportive services described in subdivision (a), if each recipient for whom the provider provides services has at least one of the following circumstances that puts the recipient at serious risk of placement in out-of-home care if the services could not be provided by that provider:
(i) He or she has They have complex medical or behavioral needs that must be met by a provider who lives in the same home as the recipient.
(ii) He or she lives They live in a rural or remote area where available providers are limited, and, as a result, the recipient is unable to hire another provider.
(iii) He or she is They are unable to hire another provider who speaks the same language as the recipient, resulting in the recipient being unable to direct his or her their own care.
(C) At the time of assessment or reassessment, the county shall evaluate each recipient to determine if the recipient’s circumstances appear to indicate that the provider for that recipient may be eligible for an exemption described in subparagraph (A) or (B). The county shall then inform those recipients about the potentially applicable exemptions and the process by which they or their provider may apply for the exemption.
(D) On a one-time basis upon implementation of this paragraph, the department shall mail an informational notice and an exemption request form to all providers of multiple recipients who may be eligible for an exemption pursuant to subparagraph (B) and to the recipients to whom those providers provide services.
(E) (i) The county shall review the requests for consideration for an exemption described in subparagraph (B) pursuant to a process developed by the department with input from counties and stakeholders. The county shall consider whether the denial of an exemption would place a recipient or recipients at serious risk of placement in out-of-home care due to any of the circumstances described in clauses (i) to (iii), inclusive, of subparagraph (B).
(ii) Within 30 days of receiving an application for an exemption described in subparagraph (B) from a provider or from a recipient on behalf of a provider, the county shall mail a written notification letter to the provider and the recipients for whom the provider provides services of its approval or denial of the exemption. If the county denies the exemption, the county shall also explain in the notification letter the reason for the denial and information about the process to request a review by the department, independent of the county’s decision. The county shall use a standardized notification letter, developed by the department in consultation with stakeholders, for purposes of providing the notification letter that is required by this clause.
(iii) (I) A provider whose exemption under subparagraph (B) has been denied, or a recipient on behalf of his or her their provider whose exemption under subparagraph (B) has been denied, may request a review by the department, independent of the county’s decision.
(II) The department shall develop the review process with input from stakeholders. At a minimum, the review process shall ensure that it provides the provider or the recipient, or his or her their authorized representative, with the opportunity to speak with, and provide written information to, staff of the department conducting the review about how the recipient meets the criteria described in subparagraph (B) and how any alternative services proposed by the county would place the recipient at serious risk of placement in out-of-home care.
(III) The department shall consider the information provided by the provider or the recipient, or his or her their authorized representative, and the information provided by the county in reaching its decision.
(IV) The department shall mail its written decision within 20 days of the date the provider or the recipient is scheduled to speak with the staff of the department conducting the review, unless the provider or the recipient has requested additional time to submit information and the department has granted that request. The written decision shall inform the provider and the recipients for whom the provider provides services if the exemption is granted or denied. If the department denies the exemption, the department shall also explain in the written decision the reason for the denial.
(iv) The county shall record the number of requests for exemptions that are received from providers or recipients on the provider’s behalf and the number of requests approved or denied, and shall submit these numbers to the department. The department shall record the number of requests for the review by the department that are received from providers or recipients and the number of exemptions that are approved or denied through the review process. The numbers by the county and the department shall be posted no later than every three months on the department’s Internet Web site. internet website.
(e) Recipients and providers shall be informed of the limitations and requirements contained in this section, through notices at intervals and on forms as determined by the State Department of Social Services or the State Department of Health Care Services, as applicable, following consultation with stakeholders.
(f) (1) A provider of services described in subdivision (a) shall not engage in travel time in excess of seven hours per week. For purposes of this subdivision, “travel time” means time spent traveling directly from a location where authorized services specified in subdivision (a) are provided to one recipient to another location where authorized services are to be provided to another recipient. A provider shall coordinate hours of work with his or her their recipients to comply with this section.
(2) The hourly wage to compensate a provider for travel time described in this subdivision when the travel is between two counties shall be the hourly wage of the destination county.
(3) Travel time, and compensation for that travel time, between a recipient of authorized in-home supportive services specified in subdivision (a) and a recipient of authorized waiver personal care services specified in subdivision (a) shall be attributed to the program authorizing services for the recipient to whom the provider is traveling.
(4) Hours spent by a provider while engaged in travel time shall not be deducted from the authorized hours of service of any recipient of services specified in subdivision (a).
(5) The State Department of Social Services and the State Department of Health Care Services shall issue guidance and processes for travel time between recipients that will assist the provider and recipient to comply with this subdivision. Each county shall provide technical assistance to providers and recipients, as necessary, to implement this subdivision.
(g) A provider of authorized in-home supportive services specified in subdivision (a) shall timely submit, deliver, or mail, verified by postmark or request for delivery, a signed payroll timesheet within two weeks after the end of each bimonthly payroll period. Notwithstanding any other law, a provider who submits an untimely payroll timesheet for providing authorized in-home supportive services specified in subdivision (a) shall be paid by the state within 30 days of the receipt of the signed payroll timesheet.
(h) This section does not apply to a contract entered into pursuant to Section 12302 or 12302.6 for authorized in-home supportive services. Contract rates negotiated pursuant to Section 12302 or 12302.6 shall be based on costs consistent with a 40-hour workweek.
(i) The state and counties are immune from any liability resulting from implementation of this section.
(j) Any action authorized under this section that is implemented in a program authorized pursuant to Section 14132.95, 14132.956, or 14132.97 shall be compliant with federal Medicaid requirements, as determined by the State Department of Health Care Services.
(k) Notwithstanding the rulemaking provisions of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code), the State Department of Social Services and the State Department of Health Care Services may implement, interpret, or make specific this section by means of all-county letters or similar instructions, without taking any regulatory action.
(l) (1) This section shall become operative only when the regulatory amendments made by RIN 1235-AA05 to Part 552 of Title 29 of the Code of Federal Regulations are deemed effective, either on the date specified in RIN 1235-AA05 or at a later date specified by the United States Department of Labor, whichever is later.
(2) If the regulatory amendments described in paragraph (1) become only partially effective by the date specified in paragraph (1), this section shall become operative only for those persons for whom federal financial participation is available as of that date.

SEC. 2.

 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 weekly 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 weekly 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 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 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, 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 their 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. week. 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 their service provider.
(C) The recipient or, if the recipient is a minor, his or her their parent or legal guardian, or if incompetent, his or her their 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 their 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.