There is an ongong moeny issue with in-home care. The folling update
is from a disabled rights worker.
REPORT
#161-2010 – SEPTEMBER 14, 2010 – TUESDAY
CALIFORNIA DISABILITY COMMUNITY ACTION NETWORK: Advocacy Without Borders: One Community – Accountability With Action - California Disability Community Action Network Disability Rights News goes out to over 55,000 people with disabilities, mental health needs, seniors, traumatic brain & other injuries, veterans with disabilities and mental health needs, their families, workers, community organizations, including those in Asian/Pacific Islander, Latino, African American communities, policy makers and others across California.
To reply to this report write: MARTY OMOTO at martyomoto@rcip.com WEBSITE: www.cdcan.us TWITTER: www.twitter.com - “MartyOmoto
California Budget Crisis:
Draft Guidelines for IHSS Workers and Disqualifying Convictions Released by Department of Social Services
Department Seeks Review and Comment by Stakeholder Individuals and Organizations by September 23rd – New Guidelines Once Finalized Will Be Issued As A Result of Beckwith v. Wagner State Lawsuit
SACRAMENTO, CALIF (CDCAN) [Updated 09/14/2010 8:20 PM (Pacific Time)] - The California Department of Social Services, the state agency that oversees statewide the In-Home Supportive Services (IHSS) program released for review and comment early this evening new draft guidelines for the counties – who administer the IHSS program locally – on what criminal convictions would disqualify a person from being an IHSS worker (provider). [A 4 page pdf copy of the guidelines is attached to this CDCAN Report, titled “ACL 9-13-10 drft CS edits.pdf. The draft copy can be read by electronic readers for persons who are blind who have sight impairments. A complete plain text copy of the draft is also reprinted below in this report. ]
The draft guidelines are contained in an “All County Letter” to county welfare directors, county In-Home Supportive Services program managers and other local agencies are is meant to comply with a ruling by an Alameda Superior Court judge issued on August 23, 2010, in the case Beckwith (formerly Ellis), et. al v. Wagner that blocked the Department of Social Services from implementing a policy that would have disqualified individuals who had been convicted of any felony or serious misdemeanor crimes from being an IHSS worker (provider). [Note: “Beckwith” is the name of a person with disabilities who receives services under the IHSS program and “Wagner” refers to John Wagner, the director of the Department of Social Services.]
As a result of the state court ruling, the Department of Social Services will be sending these guidelines – once it is finalized - to the counties that will provide instructions that they are to continue to “deem ineligible” to be an IHSS worker (provider) any person who has been convicted of, or was incarcerated following a conviction for, those crimes specified in current existing state law in California Welfare and Institutions Code (W&IC) Section 12305.81 (which also applies to the federal Medicaid (called “Medi-Cal” in California) program and programs funded using Medi-Cal money – such as IHSS):
· Fraud against a government health care or supportive services program; or
· A violation of subdivision (a) of [the California] Penal Code (PC) section 273a (specified abuse of a child); or
· A violation of Penal Code section 368 (abuse of an elder or dependent adult – which refers to a person with disabilities)
Comments Due September 23, 2010
The draft guidelines are not final and the Department of Social Services is asking stakeholders – which includes individuals and organizations who are connected or interested in the IHSS program to send their written comments back to the department by September 23, 2010, Thursday, by close of business (5:00 PM Pacific Time).
Send written comments to via email to:
Charissa Miguelino at Charissa.Miguelino@dss.ca.gov
and
Brad Elftmann at Brad.Elftmann@dss.ca.gov
Persons having questions about these draft guidelines can contact Randy Shiroi, Chief of the Adult Programs Policy Bureau, Department of Social Services at (916) 229-4000.
Who This Specifically Impacts
· The draft guidelines (All County Letter) specifically refer to and impact the over 360,000 persons who work as IHSS providers (workers) to provide supports and services to over 460,000 children and adults with disabilities (including developmental), mental health needs, persons with traumatic brain and other injuries, persons with MS, Alzheimer’s and other disorders, and seniors.
· It also impacts potentially some number of the over 460,000 persons receiving IHSS because the guidelines – that are meant to comply with the August 23, 2010 State Superior Court order – could impact their own specific worker or a person applying to be their worker.
· In some cases it means that certain individuals who may have some felony and/or certain misdemeanor convictions on their record, can continue to work or are eligible to work as an IHSS provider (worker) because those convictions do NOT fall under the specific violations in current State law (as listed above) dealing with the Medicaid program (called “Medi-Cal”).
· Persons who have a question about this or related issues should contact their county IHSS Advisory Committee, IHSS county office or the Department of Social Services and/or their own state legislators. Workers who belong to a union who have a question or concern regarding this issue, can also contact their union representatives. People can also send a question to CDCAN (Marty Omoto) at martyomoto@rcip.com
Anti-Fraud Public Stakeholder Meeting To Be Scheduled
On a related note, the Department of Social Services will be announcing soon a date and specific meeting location in Sacramento, for a public stakeholder meeting to review and to hear from the public its proposed guidelines involving several anti-fraud measures, including a controversial unannounced home visits by the county or state of certain persons receiving IHSS. The department earlier in July had looked tentatively at holding the meeting in late August and then, possibly this week in September – though neither date or location was ever finalized or officially announced. [CDCAN will get word out on this public meeting when the Department of Social Services officially announces a date and location – and will also schedule in October, a CDCAN Townhall Telemeeting focusing on IHSS and related issues]
Some counties have already implemented these unannounced home visits, which many disability, mental health and senior rights advocates and other individuals and organizations have strongly protested and urged to be discontinued at least until the State issued guidelines. Many of those advocates have urged the Legislature and Governor to rescind this requirement, which was passed among several other measures to combat certain aspects of reported fraud and abuse in the IHSS program, as part of the 2009-2010 State Budget revised in July 2009.
No State Budget Deal In Sight As California Now 76 Days Without A Budget
Meanwhile, California is now 76 days without a state budget, just a day away from tying the previous record (in 2008) of the state going without a spending plan in place. Democrats and Republicans in the State Legislature and the Governor – who returns Wednesday (September 15th) from his 6 day trip to Asia promote jobs and the California economy – remain deadlocked on how to resolve and close the over $19 billion budget hole. No agreement is in sight.
PLAIN TEXT OF THE DRAFT GUIDELINES
Below is the plain text of the draft guidelines (All County Letter) that will – when finalized – be sent from the California Department of Social Services to all county welfare directors, all county In-Home Supportive Services program managers and other agencies. The actual pdf file sent out by the department is also attached to this CDCAN Report. The Department of Social Services will send out a final version of the below All County Letter sometime after the September 23rd comment deadline.
State of California – Health and Human Services Agency
DEPARTMENT OF SOCIALS SERVICES
September XX, 2010 [Note: XX – the date - will be filled in when final version sent out]
Reason for This Transmittal: Court Order or Settlement Agreement
ALL-COUNTY LETTER (ACL) NO. 10-XX [“10” refers to the year – 2010, and the “XX” will be whatever number is assigned to this All County Letter when it is finalized and actually sent out to the counties. Numbers are assigned to the final All County Letters in the order it is sent out.]
TO: ALL COUNTY WELFARE DIRECTORS
ALL IN-HOME SUPPORTIVE SERVICES (IHSS) PROGRAM MANAGERS
SUBJECT: BECKWITH (ELLIS), et. al. v. WAGNER; IHSS PROVIDER DISQUALIFYING CONVICTIONS
REFERENCES: ACL NO. 09-52, DATED OCTOBER 1, 2009; ACL NO. 09-70,
DATED OCTOBER 31, 2009; ACL NO. 09-78, DATED
NOVEMBER 25, 2009; ACL NO. 10-05, DATED
FEBRUARY 17, 2010; AND ACL NO. 10-35, DATED JULY 16, 2010
*****DRAFT******
This ACL provides counties with the latest information and instructions regarding Beckwith (Ellis) v. Wagner lawsuit Case No. RG 09484051. On August 23, 2010, the Alameda County Superior court issued an order prohibiting the California Department of Social Services (CDSS) from reinstating a previous policy which would disqualify individuals who had ever been convicted of a felony or serious misdemeanor crime from being enrolled as providers in the IHSS program. As a result of the recent court ruling, counties are instructed to continue to deem ineligible to be IHSS providers only those individuals who have been convicted of, or incarcerated following a conviction for, those crimes specified in Welfare and Institutions Code (W&IC) section 12305.81:
1) Fraud against a government health care or supportive services program;
2) A violation of subdivision (a) of Penal Code (PC) section 273a (specified abuse of a child); or
3) A violation of PC section 368 (abuse of an elder or dependent adult).
Counties are further instructed to retain copies of all criminal offender record information (CORI) responses received from the California Department of Justice (DOJ) on IHSS provider applicants pending final resolution of this litigation. These records are required to be stored in a confidential manner with access only to authorized personnel.
BACKGROUND
In October 2009, CDSS issued ACLs No. 09-52 and 09-70, which provided information and instructions to counties for implementing expanded provider enrollment requirements for the IHSS program, mandated by Assembly Bill, Fourth Extraordinary Legislative Session (ABX4) 19 (Chapter 17, Statutes of 2009).
In addition to general information about the expanded provider enrollment requirements, ACL No. 09-52 transmitted a revised Provider Enrollment Form (SOC 426) which included a statement that an individual seeking to become an IHSS provider was required to sign under penalty of perjury declaring that he/she had never been convicted of any disqualifying crimes, which included any felonies and certain serious misdemeanor crimes.
ACL No. 09-70 provided instructions on the criminal background check process and procedures indicating that an individual whose CORI showed that he/she had been convicted of a felony or certain serious misdemeanor crime should be deemed ineligible to be enrolled as an IHSS provider.
Subsequent to the release of those ACLs, a lawsuit, Beckwith (Ellis) v. Wagner, was filed in Alameda County Superior court to contest CDSS’ interpretation of the crimes that would disqualify an individual from being an IHSS provider.
On November 24, 2009, the Alameda County Superior Court issued a Temporary Restraining Order (TRO) directing the CDSS to:
· Stop using IHSS provider enrollment forms or other documents requiring individuals to declare that they never have been convicted of a felony crime or serious misdemeanor and/or state that persons convicted of such crimes are not eligible to be IHSS providers; and
· Stop disqualifying or finding individuals ineligible to be IHSS providers on the basis that they have been convicted of a felony or a serious misdemeanor at some point in their life and who are otherwise not disqualified.
In order to comply with the TRO, CDSS issued ACL No. 09-78, dated November 25, 2009, which instructed counties to use the prior version of the SOC 426 which did not include the declaration or any reference to disqualifying crimes, and to limit the disqualification of individuals to those who, in the last 10 years, had been convicted of, or incarcerated following a conviction for only the crimes specified in W&IC section 12305.81.
On March 26, 2010, the Alameda County Superior Court issued its order in Beckwith (Ellis) v. Wagner (No. RG09-484051). The court limited the crimes that make an individual ineligible to be an IHSS provider to those crimes listed only in W&IC section 12305.81. On May 24, 2010, CDSS filed an appeal of the decision by the Alameda County Superior Court.
In early August of this year, CDSS circulated a draft ACL for stakeholder comments. The draft ACL informed counties that the previous policy which disqualified from being a provider any individual who had ever been convicted of a felony or serious misdemeanor crime would be reinstated. On August 23, 2010, the Alameda County Superior Court issued an Order Granting Petitioner’s Application for Provisional Relief. The court order enjoins CDSS from issuing as final the ACL which had been circulated for stakeholder comments. As a result, counties are limited to the three crimes listed in W&IC section 12305.81 as a basis for excluding an individual from becoming a provider.
CLARIFICATION ON EXPUNGEMENT OF A DISQUALIFYING CRIME
While the court injunction was in place, CDSS issued ACL No. 10-05, dated February 17, 2010, which contained a question addressing expungement of a conviction pursuant to PC section 1203.4, and what effect it would have on an individual’s eligibility to be enrolled as an IHSS provider. The response provided to that question indicated that a conviction that is expunged pursuant to PC section 1203.4, releases a person from all “penalties and disabilities” resulting from the offense, and that as a result, an expunged conviction for a disqualifying crime would not make an individual ineligible to be enrolled as a provider in the IHSS program.
However, at this time, CDSS is reinstating the policy established before the court order in Beckwith (Ellis) v. Wagner. Consistent with existing Medi-Cal rules for provider enrollment, a conviction means that the judgment of conviction has been entered against an individual or entity by a federal, state, or local court, regardless of whether there is a post-trial motion, an appeal pending, or the judgment of conviction or other record relating to the criminal conduct has been expunged or otherwise removed. In short, an expunged conviction for a disqualifying crime would not make an individual eligible to be enrolled as a provider in the IHSS program. This policy is consistent with case law interpreting PC section1203.4 and language in W&IC section 12305.81. This policy will be applied to any appeals pending before CDSS. Upon receipt of this letter, counties shall exclude individuals who have been convicted of a disqualifying crime regardless of any expungement that may have occurred.
CDSS’ appeal of the March 26, 2010 court ruling is still pending. In addition, CDSS is pursuing legislative changes which would expand the criminal convictions which would disqualify an individual from being enrolled as an IHSS provider. CDSS will keep counties apprised of developments in this litigation and its legislative efforts.
Should you have questions regarding information in this ACL, please contact the Adult Programs Policy Bureau at (916) 229-4000.
Sincerely,
EILEEN M. CARROLL
Deputy Director
Adult Programs Division
VERY URGENT!!!!!
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MANY, MANY THANKS TO BOB BENSON, the Pacific Homecare Services, Easter Seals, California Association of Adult Day Health Centers, Valley Mountain Regional Center, Toward Maximum Independence, Inc (TMI), Friends of Children with Special Needs, UCP of Los Angeles, Ventura and Santa Barbara Counties, Southside Arts Center, San Francisco Bay Area Autism Society of America, Hope Services in San Jose, FEAT of Sacramento (Families for Early Autism Treatment), RESCoalition, Sacramento Gray Panthers, Easter Seals of Southern California, Tri-Counties Regional Center, Westside Regional Center, Regional Center of the East Bay, UCP of Orange County, Alta California
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