Existing law provides for the county-administered In-Home Supportive Services (IHSS) program, under which qualified aged, blind, and disabled persons are provided with supportive services in order to permit them to remain in their own homes and avoid institutionalization. Existing law provides that a person who is the parent or a spouse of a recipient of those services shall be paid for providing specified services to the recipient through the program.

This bill would, until January 1, 2019, establish the In-Home Supportive Services Family Caregiver Benefits Advisory Committee within the State Department of Social Services, as specified, for the purpose of describing the availability of, and barriers to accessing, employment-based supports and protections, as specified, and studying the impact of the lack of access to these supports and protections on individuals who provide supportive services to a spouse or as the parent of a recipient child. The bill would require the advisory committee to submit a peer-reviewed report to the Legislature, as specified, on or before January 1, 2018.

Existing law provides for the county-administered In-Home Supportive Services (IHSS) program, under which qualified aged, blind, and disabled persons are provided with supportive services in order to permit them to remain in their own homes and avoid institutionalization. Existing law provides that a person who is the parent or a spouse of a recipient of those services shall be paid for providing specified services to the recipient through the program.

This bill would, until January 1, 2019, establish the In-Home Supportive Services Family Caregiver Benefits Advisory Committee within the State Department of Social Services, as specified, for the purpose of describing the availability of, and barriers to accessing, employment-based supports and protections, as specified, and studying the impact of the lack of access to these supports and protections on individuals who provide supportive services to a spouse or as the parent of a recipient child. The bill would require the advisory committee to submit a peer-reviewed report to the Legislature, as specified, on or before January 1, 2018.

Existing law provides for the county-administered In-Home Supportive Services (IHSS) program, under which qualified aged, blind, and disabled persons are provided with supportive services in order to permit them to remain in their own homes and avoid institutionalization. Existing law provides that a person who is the parent or a spouse of a recipient of those services shall be paid for providing specified services to the recipient through the program.

This bill would, until January 1, 2019, establish the In-Home Supportive Services Family Caregiver Benefits Advisory Committee, Committee within the State Department of Social Services, as specified, for the purpose of describing the availability of, and barriers to accessing, employment-based supports and protections, as specified, and studying the impact of the lack of access to these supports and protections on individuals who provide the supportive services described in the above provisions to a spouse or as the parent of a recipient child. The bill would require the advisory committee to submit a peer-reviewed report to the Legislature, as specified, on or before January 1, 2018.

Existing law provides for the county-administered In-Home Supportive Services (IHSS) program, under which qualified aged, blind, and disabled persons are provided with supportive services in order to permit them to remain in their own homes and avoid institutionalization. Existing law provides that a person who is the parent or a spouse of a recipient of those services shall be paid for providing specified services to the recipient through the program.

This bill would, until January 1, 2019, establish the In-Home Supportive Services Family Caregiver Benefits Advisory Committee, as specified, for the purpose of describing the availability of, and barriers to accessing, employment-based supports and protections, as specified, and studying the impact of the lack of access to these supports and protections on individuals who provide the supportive services described in the above provisions to a spouse or as the parent of a recipient child. The bill would require the advisory committee to submit a peer-reviewed report to the Legislature, as specified, on or before January 1, 2018.

Existing law provides for the county-administered In-Home Supportive Services (IHSS) program, under which qualified aged, blind, and disabled persons are provided with supportive services in order to permit them to remain in their own homes and avoid institutionalization. Existing law provides that a person who is the parent or a spouse of a recipient of those services shall be paid for providing specified services to the recipient through the program.

This bill would, until January 1, 2019, establish the In-Home Supportive Services Family Caregiver Benefits Advisory Committee, as specified, for the purpose of describing the availability of, and barriers to accessing, employment-based supports and protections, as specified, and studying the impact of the denial of state unemployment insurance benefits and federal Medicare and Social Security benefits lack of access to these supports and protections on individuals who provide the supportive services described in this article the above provisions to a spouse or as the parent of a recipient child. The bill would require the advisory committee to submit a peer-reviewed report to the Legislature, as specified, on or before January 1, 2018.

Existing law provides for the county-administered In-Home Supportive Services (IHSS) program, under which qualified aged, blind, and disabled persons are provided with supportive services in order to permit them to remain in their own homes and avoid institutionalization. Existing law provides that a person who is the parent or a spouse of a recipient of those services shall be paid for providing specified services to the recipient through the program.

This bill would would, until January 1, 2019, establish the In-Home Supportive Services Family Caregiver Benefits Advisory Committee, as specified, for the purpose of studying the impact of the denial of state unemployment insurance benefits and federal Medicare and Social Security benefits on individuals who provide the supportive services described in this article to a spouse or as the parent of a recipient child. The bill would require the advisory committee to submit a peer-reviewed report to the Legislature, as specified, on or before January 1, 2018.

Existing law provides for the county-administered In-Home Supportive Services (IHSS) program, under which qualified aged, blind, and disabled persons are provided with supportive services in order to permit them to remain in their own homes and avoid institutionalization. Existing law provides that a person who is the parent or a spouse of a recipient of those services shall be paid for providing specified services to the recipient through the program.

This bill would establish the In-Home Supportive Services Family Caregiver Benefits Advisory Committee, as specified, for the purpose of studying the impact of the denial of state unemployment insurance benefits and federal Medicare and Social Security benefits on individuals who provide the supportive services described in this article to a spouse or as the parent of a recipient child. The bill would require the advisory committee to submit a peer-reviewed report to the Legislature, as specified, on or before January 1, 2018.

GOVERNOR'S VETO

GV Bill Id:AB 1930

Author:(Lackey)

As Enrolled Ver:August 30, 2016

2/3 vote

Original Committee Reference: HUM. S.

SUMMARY: Establishes the In-Home Supportive Services (IHSS) Family Caregiver Benefits Advisory Committee for the purpose of studying, and providing a report on, employment-based supports and protections as they pertain to IHSS providers.

The Senate amendments:

1. Modify and clarify certain aspects of the advisory committee, including the following: establishes the committee within the Department of Social Services (DSS); states that it should consider, alongside other employment-based supports and protections, factors related to state unemployment insurance benefits; and changes the required composition of the committee by including nonprofit organizations related to IHSS, removing the Department of Finance and Legislative Analyst's Office, and specifying that the labor organizations to be included should be designated representatives of providers of personal assistance services funded as IHSS, as specified.
2. Change the bill's required size of the advisory committee from not more than 15 individuals to no fewer than eight individuals and not more than 11 individuals, and authorize the Governor to appoint no more than nine individuals, and require the Speaker of the Assembly and the Senate Committee on Rules to each appoint one individual to the committee. Further, require the Governor's appointees to include only representatives of groups specified by the bill, but permit the other two appointees to include representatives not from these groups, and require all appointments to ensure that the advisory committee includes representatives of all specified groups.
3. Make technical changes.

EXISTING LAW:

1. Establishes the IHSS program to provide supportive services, including domestic, protective supervision, personal care, and paramedical services as specified, to individuals who are aged, blind, or living with disabilities, and who are unable to perform the services themselves or remain safely in their homes without receiving these services. (Welfare and Institutions Code Section (WIC) 12300 et seq.)
2. States those counties may choose to contract with a nonprofit consortium or establish a public authority for the provision of IHSS services. Requires nonprofit consortia and public authorities to, among other things, establish a registry to assist recipients in locating IHSS providers, and to investigate the background and qualifications of potential providers, as specified. (WIC 12301.6)
3. Maintains an IHSS recipient's right to hire, fire, and supervise the work of any IHSS provider, regardless of the employer responsibilities of a public authority or nonprofit consortium, as specified. (WIC 12301.6)
4. Requires the application for IHSS to contain a notice to the recipient that his or her provider(s) will be given written notice of the recipient's authorized services and allotted hours and further requires the application to inform recipients of specified Media-Cal contact information for reporting fraud or abuse. (WIC 12301.15)

FISCAL EFFECT: According to the Senate Appropriations Committee on August 1, 2016, this bill may result in the following costs:

1. Estimated costs to DSS of $373,000 in fiscal year 2016-17 and $331,000 in fiscal year for administrative costs to support the advisory group, assuming the committee will meet quarterly. This includes three new staffing positions to assist in staffing the committee and to prepare the peer-reviewed report. (General Fund)
2. Costs to DSS of $97,000 for fiscal years 2016-17 and 2017-18 for transportation and meeting expenses for committee members, county representatives, IHSS providers, IHSS recipients and their providers and for legal research and consultation. (General Fund)
3. Significant cost to DSS of $250,000 for fiscal years 2016-17 and 2017-18 for an external contract with the University of California to complete the study and peer-reviewed report. (General Fund)
4. Likely significant cost pressure to implement any recommendations that the advisory committee produces.

COMMENTS:

In-Home Supportive Services: The IHSS program enables low-income individuals who are at least 65 years old, living with disabilities, or blind to remain in their own homes by paying for care providers to assist with personal care services (such as toileting, bathing, and grooming), domestic and related services (meal preparation, housecleaning, and the like), paramedical services, and protective supervision. Approximately 464,000 Californians receive IHSS, with approximately 99% receiving it as a Medicaid benefit.

When an individual is determined eligible for IHSS services by a county social worker, he or she is authorized for a certain number of hours of care. IHSS recipients are responsible for hiring, firing, directing, and supervising their IHSS workers. These responsibilities include some administrative duties, such as scheduling and signing timesheets; however, the state handles payroll. There are currently about 433,400 IHSS providers in the state; approximately 69% are relatives and an estimated 50% are live-in. Providers must complete an enrollment process, including submitting fingerprint images for a criminal background check and participating in a provider orientation prior to receiving payment for services.

Access to some employment-based benefits and protections may be limited for certain IHSS providers, particularly if a provider is related to the IHSS consumer. According to IHSS provider training materials from DSS, "some family members, especially spouses and parents of consumers, are not eligible to have Social Security (FICA) funds withheld from paychecks," and "Unemployment Insurance benefits may be available to you if you are not the parent or spouse of your employer/recipient and become unemployed, able and available to work and you meet certain eligibility requirements."

Need for this bill: According to the author, this bill "would establish an advisory committee to study how this exclusion [of certain relative IHSS providers from Social Security, state unemployment insurance and other coverage] impacts the economic security of individuals who provide these critical services and their communities. This committee would include policy experts as well as those directly impacted by the exclusion. The committee would be tasked with drafting a report to the Legislature with recommendations on steps the state can take to ensure that all IHSS providers have access to social security, Medicare, and unemployment insurance. Over several decades, the fact that these workers cannot access Social Security, Medicare or Unemployment Insurance benefits has resulted in terrible economic hardship for tens of thousands of IHSS workers who are at or near retirement age. It also results in indirect costs to taxpayers as hard working seniors are forced into poverty and reliance on state public assistance programs. It is worth exploring why benefits that are provided to one category of workers that are denied to another category of workers in the same program."

GOVERNOR'S VETO MESSAGE:

I am returning Assembly Bill 1930 without my signature.

This bill establishes an advisory committee within the Department of Social Services to study and report to the Legislature on issues related to employee contributions to Social Security benefits, Medicare and unemployment benefits for In-Home Supportive Services family providers.

The In-Home Supportive Services Stakeholder Advisory Committee, with its composition of consumers, providers, labor representatives and advocates, has the ability and expertise to examine these issues and produce information necessary to advise the departments involved as well as the Legislature on this topic.

Analysis Prepared by: Daphne Hunt / HUM. S. / (916) 319-2089 FN: 0005118

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 1930

Author:(Lackey)

As Amended Ver:August 1, 2016

Majority vote

Original Committee Reference: HUM. S.

SUMMARY: Establishes the In-Home Supportive Services (IHSS) Family Caregiver Benefits Advisory Committee for the purpose of studying, and providing a report on, employment-based supports and protections as they pertain to IHSS providers.

The Senate amendments:

1. Modify and clarify certain aspects of the advisory committee, including the following: establishes the committee within the Department of Social Services (DSS); states that it should consider, alongside other employment-based supports and protections, factors related to state unemployment insurance benefits; and changes the required composition of the committee by including nonprofit organizations related to IHSS, removing the Department of Finance and Legislative Analyst's Office, and specifying that the labor organizations to be included should be designated representatives of providers of personal assistance services funded as IHSS, as specified.
2. Change the bill's required size of the advisory committee from not more than 15 individuals to no fewer than eight individuals and not more than 11 individuals, and authorize the Governor to appoint no more than nine individuals, and require the Speaker of the Assembly and the Senate Committee on Rules to each appoint one individual to the committee. Further, require the Governor's appointees to include only representatives of groups specified by the bill, but permit the other two appointees to include representatives not from these groups, and require all appointments to ensure that the advisory committee includes representatives of all specified groups.
3. Make technical changes.

EXISTING LAW:

1. Establishes the IHSS program to provide supportive services, including domestic, protective supervision, personal care, and paramedical services as specified, to individuals who are aged, blind, or living with disabilities, and who are unable to perform the services themselves or remain safely in their homes without receiving these services. (Welfare and Institutions Code Section (WIC) 12300 et seq.)
2. States those counties may choose to contract with a nonprofit consortium or establish a public authority for the provision of IHSS services. Requires nonprofit consortia and public authorities to, among other things, establish a registry to assist recipients in locating IHSS providers, and to investigate the background and qualifications of potential providers, as specified. (WIC 12301.6)
3. Maintains an IHSS recipient's right to hire, fire, and supervise the work of any IHSS provider, regardless of the employer responsibilities of a public authority or nonprofit consortium, as specified. (WIC 12301.6)
4. Requires the application for IHSS to contain a notice to the recipient that his or her provider(s) will be given written notice of the recipient's authorized services and allotted hours and further requires the application to inform recipients of specified Media-Cal contact information for reporting fraud or abuse. (WIC 12301.15)

FISCAL EFFECT: According to the Senate Appropriations Committee on August 1, 2016, this bill may result in the following costs:

1. Estimated costs to DSS of $373,000 in fiscal year 2016-17 and $331,000 in fiscal year for administrative costs to support the advisory group, assuming the committee will meet quarterly. This includes three new staffing positions to assist in staffing the committee and to prepare the peer-reviewed report. (General Fund)
2. Costs to DSS of $97,000 for fiscal years 2016-17 and 2017-18 for transportation and meeting expenses for committee members, county representatives, IHSS providers, IHSS recipients and their providers and for legal research and consultation. (General Fund)
3. Significant cost to DSS of $250,000 for fiscal years 2016-17 and 2017-18 for an external contract with the University of California to complete the study and peer-reviewed report. (General Fund)
4. Likely significant cost pressure to implement any recommendations that the advisory committee produces.

COMMENTS:

In-Home Supportive Services: The IHSS program enables low-income individuals who are at least 65 years old, living with disabilities, or blind to remain in their own homes by paying for care providers to assist with personal care services (such as toileting, bathing, and grooming), domestic and related services (meal preparation, housecleaning, and the like), paramedical services, and protective supervision. Approximately 464,000 Californians receive IHSS, with approximately 99% receiving it as a Medicaid benefit.

When an individual is determined eligible for IHSS services by a county social worker, he or she is authorized for a certain number of hours of care. IHSS recipients are responsible for hiring, firing, directing, and supervising their IHSS workers. These responsibilities include some administrative duties, such as scheduling and signing timesheets; however, the state handles payroll. There are currently about 433,400 IHSS providers in the state; approximately 69% are relatives and an estimated 50% are live-in. Providers must complete an enrollment process, including submitting fingerprint images for a criminal background check and participating in a provider orientation prior to receiving payment for services.

Access to some employment-based benefits and protections may be limited for certain IHSS providers, particularly if a provider is related to the IHSS consumer. According to IHSS provider training materials from DSS, "some family members, especially spouses and parents of consumers, are not eligible to have Social Security (FICA) funds withheld from paychecks," and "Unemployment Insurance benefits may be available to you if you are not the parent or spouse of your employer/recipient and become unemployed, able and available to work and you meet certain eligibility requirements."

Need for this bill: According to the author, this bill "would establish an advisory committee to study how this exclusion [of certain relative IHSS providers from Social Security, state unemployment insurance and other coverage] impacts the economic security of individuals who provide these critical services and their communities. This committee would include policy experts as well as those directly impacted by the exclusion. The committee would be tasked with drafting a report to the Legislature with recommendations on steps the state can take to ensure that all IHSS providers have access to social security, Medicare, and unemployment insurance. Over several decades, the fact that these workers cannot access Social Security, Medicare or Unemployment Insurance benefits has resulted in terrible economic hardship for tens of thousands of IHSS workers who are at or near retirement age. It also results in indirect costs to taxpayers as hard working seniors are forced into poverty and reliance on state public assistance programs. It is worth exploring why benefits that are provided to one category of workers that are denied to another category of workers in the same program."

Analysis Prepared by: Daphne Hunt / HUM. S. / (916) 319-2089 FN: 0004248

 THIRD READING 

Bill No: AB 1930

Author: Lackey (R)

Amended: 8/1/16 in Senate

Vote: 21

SENATE HUMAN SERVICES COMMITTEE: 4-0, 6/14/16

AYES: McGuire, Hancock, Liu, Nguyen

NO VOTE RECORDED: Berryhill

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/11/16

AYES: Lara, Bates, Beall, Hill, McGuire, Mendoza, Nielsen

ASSEMBLY FLOOR: 77-0, 6/1/16 - See last page for vote

SUBJECT: In-home supportive services: family caregivers: advisory committee

SOURCE: UDW/AFSCME Local 3930

California Association of Public Authorities

DIGEST: This bill establishes the In-Home Supportive Services (IHSS) Family Caregiver Benefits Advisory Committee for the purpose of studying and providing a report on employment-based supports and protections for IHSS providers.

ANALYSIS:

Existing law:

1. Establishes the IHSS program to provide defined supportive services for aged, blind, or disabled persons who are unable to perform the services themselves and who cannot safely remain in their homes unless such services are provided. Those supportive services include, but are not limited to, domestic services, heavy cleaning, personal care services, and accompaniment during travel to health-related appointments or to alternative resource sites, yard hazard abatement, protective supervision, and paramedical services, as defined. (WIC 12300 et seq.)
2. Establishes county authority to contract with a nonprofit consortium or a public authority for the delivery of IHSS supportive services. Requires those nonprofit consortia and public authorities to establish a registry in order to assist IHSS recipients with hiring providers, and to investigate the background and qualifications of potential providers, as specified. (WIC 12301.6)
3. Requires that the application for IHSS services shall contain a notice to the recipient of services that his or her provider or providers will be given written notice of the recipient’s authorized services, and full number of services hours allotted to the recipient. The application shall inform recipients of the Medi-Cal toll-free telephone fraud hotline and Internet Web site for reporting suspected fraud or abuse in the provision or receipt of supportive services. (WIC 12301.15)
4. Provides that an authorized recipient of IHSS supportive services shall direct those authorized services, and that authorized services shall be performed by a provider or providers within a workweek and in a manner that complies with the requirements, as specified. (WIC 12300.4)
5. Maintains an IHSS recipient's right to hire, fire, and supervise the work of any IHSS provider, regardless of the employer responsibilities of a public authority or nonprofit consortium, as specified. (WIC 12301.6)

This bill:

1. Creates the IHSS Family Caregiver Benefits Advisory Committee to describe the availability of, and barriers to, employment-based supports and protections, including, but not limited to, federal Social Security benefits and state unemployment insurance benefits, and to study the impact that lack of access to these supports and protections has on IHSS providers who care for specified family members, and their communities.
2. Requires the advisory committee to be made up of not more than 11 individuals, and further requires those individuals to represent specified entities, including, but not limited to, academic entities and nonprofit organizations, the California Department of Social Services (CDSS), IHSS public authorities, labor organizations that represent IHSS providers, and IHSS providers and consumers.
3. Permits the Governor to appoint not more than nine individuals to the advisory committee and requires that individuals appointed by the Governor may include only representatives from specified groups.
4. Requires the Speaker of the Assembly and the Senate Committee on Rules to each appoint one individual to the advisory committee, as specified.
5. Requires that appointments made to the advisory committee include representatives from all groups, as specified.
6. Requires, by January 1, 2018, the advisory committee to provide a peer-reviewed report to designated Legislative committees that includes a summary of findings and recommendations on steps the state could take to ensure that all IHSS providers who provide care for specified family members have access to employment-based supports and protections, as specified.
7. Provides that the provisions of the bill shall remain in effect only until January 1, 2019, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2019, deletes or extends that date.

Background

The IHSS program, which is administered by CDSS, provides in-home services for low-income individuals who are at least 65 years of age, blind and/or disabled and unable to perform the services themselves and who cannot safely remain in their homes unless these services are provided. IHSS recipients need those services in order to avoid out-of-home care.

IHSS services may include domestic and related services, like housework, meal preparation, laundry and shopping; personal care services; accompaniment to medical appointments; protective supervision for recipients who may place themselves at risk for injury; and hazard or accident and paramedical services when directed by a physician.

County welfare departments notify IHSS recipients which services are approved, how much time is authorized for each service, and the total authorized monthly hours. IHSS recipients are responsible for hiring, firing, directing and supervising their IHSS provider. These responsibilities include some administrative duties, such as scheduling and signing timesheets. However, CDSS handles IHSS payroll.

Providers must complete an enrollment process, including submitting fingerprints for a criminal background screening and participating in an orientation prior to receiving payment for services.

Approximately 464,000 Californians receive IHSS and about 99% of recipients receive IHSS as a Medicaid benefit. There are currently about 433,400 IHSS providers in the state. Approximately 69 percent of them are relatives and about 50 percent are live-in providers.

IHSS Exclusion from certain employment benefits

Access to some employment-based benefits and protections are limited for certain IHSS providers, particularly if a provider is related to the IHSS consumer. According to IHSS provider training materials from CDSS, "some family members, especially spouses and parents of consumers, are not eligible to have Social Security (FICA) funds withheld from paychecks" and "Unemployment Insurance benefits may be available to you if you are not the parent or spouse of your employer/recipient and become unemployed, able and available to work and you meet certain eligibility requirements."

CDSS cites existing state and federal laws as the reason why spouses and parents are generally not subject to Social Security, Medicaid and unemployment benefits.

Existing federal law requires employers to withhold and match Social Security and Medicare taxes from an employee’s wages, which are then used to fund the employee’s future Social Security and Medicare benefits. However, wages earned while providing IHSS services by a spouse, child or parent are not subject to these withholdings, making these providers ineligible to receive such benefits.

Specifically, the Federal Insurance Contribution Act (FICA) requires employers to withhold taxes from the wages an individual receives for employment. The employer matches the amount of these withholdings, which together are used to fund the employee’s future Social Security and Medicare benefits. The Internal Revenue Code (IRC) section 3121 (b) defines “employment” as any service an employee performs for an employer. The IRC contains an exception to this definition for family employment (IRC section 3121(b) (3)). The “family employment exception” applies to service in a private home “in the employ of an individual’s son, daughter, or spouse.” In those cases, according to the IRS, no actual employment relationship exists.

As a result, the CDSS has determined that wages paid through IHSS to parent or spouse providers fall under the “family employment exception” and therefore are exempt from employment taxes such as FICA and state UI.

Additionally, Section 631 of the California Unemployment Insurance Code states, in part, that “Employment” does not include service performed by … an individual in the employ of his (or her) son, daughter, or spouse. Therefore, these family employees are excluded from Unemployment Insurance (UI), Employment Training Tax, and State Disability Insurance coverage.

In order to change the benefits to this subset of IHSS workers, changes in federal and state law are likely necessary. According to the author, some people argue that “this is a federal issue and that any remedy for this situation can only be pursued on a federal level. Though we agree that this problem originates in federal code, we believe there may be steps the state can take to resolve the issue or, at the least, mitigate the negative economic impacts. The first step would be to bring together policy experts, lawmakers, and individuals directly impacted by this problem in order to thoroughly analyze and understand it. After studying the problem, it will be possible to determine what else the state can do to address this issue.”

Related/Prior Legislation

SB 1036 (Senate Budget and Fiscal Review Committee, Chapter 45, Statutes of 2012) established the IHSS Statewide Authority for purposes of collective bargaining.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Senate Appropriations Committee:

• Estimated costs to the CDSS of $373,000 in fiscal year 2016-17 and $331,000 in fiscal year for administrative costs to support the advisory group, assuming the committee will meet quarterly. This includes three new staffing positions to assist in staffing the committee and to prepare the peer-reviewed report. (GF)
• Costs to CDSS of $97,000 for fiscal years 2016-17 and 2017-18 for transportation and meeting expenses for committee members, county representatives, IHSS providers, IHSS recipients and their providers and for legal research and consultation. (GF)
• Significant cost to CDSS of $250,000 for fiscal years 2016-17 and 2017-18 for an external contract with the University of California to complete the study and peer-reviewed report. (GF)
• Likely significant cost pressure to implement any recommendations that the advisory committee produces.

SUPPORT: (Verified 8/12/16)

UDW/AFSCME Local 3930 (co-source)

The California Association of Public Authorities (co-source)

American Federation of State, County and Municipal Employees

California Alliance for Retired Americans

California Health Advocates

Centro Laboral de Graton

Coalition for Humane Immigrant Rights of Los Angeles

Congress of California Seniors

GABRIELA San Francisco

Justice in Aging

National Employment Law Project

Pilipino Workers Center of Southern California

San Francisco Senior Disability Action

The California Commission on Aging

The California Domestic Workers Coalition

The California Labor Federation

The Coalition of Welfare Rights Organizations

The Instituto de Educacion Popular del Sur de California

The Personal Assistance Services Council

The Los Angeles County IHSS Public Authority

OPPOSITION: (Verified )8/12/16

California Department of Finance

ARGUMENTS IN SUPPORT: According to the author, individuals who provide services through the IHSS program to their child or spouse are not allowed to contribute towards social security, Medicare, or state unemployment insurance (UI). This means that when they retire, if they become disabled, or if they lose their jobs, these hard-working caregivers do not have access to our nation’s most important programs for seniors and the uninsured, per the author. The author also states that this situation has resulted in terrible economic hardship for tens of thousands of IHSS workers who are at or near retirement age.

AB 1930 establishes an advisory committee to study how the exclusion from certain employment-based supports and protections, such as Social Security, impacts the economic security of individuals who provide these critical services and their communities. This committee includes policy experts from the field and the administration as well as individuals who are directly impacted by the exclusion. AB 1930 would require the committee to provide a peer-reviewed report to the Legislature by January 1, 2018 with a summary of the findings and recommendations on steps the state can take to ensure that all IHSS providers who provide supportive services to a spouse or child have access to all employment-based supports and protections, including federal Social Security benefits.

ARGUMENTS IN OPPOSITION: The Department of Finance is “opposed to this bill because it results in additional General Fund costs that are not included in the Administration’s current fiscal plan.”

ASSEMBLY FLOOR: 77-0, 6/1/16

AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd, Eggman, Frazier, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Rendon

NO VOTE RECORDED: Dahle, Beth Gaines, Harper

Prepared by: Taryn Smith / HUMAN S. / (916) 651-1524

8/16/16 9:33:55

**** END ****

 THIRD READING  

Bill No: AB 1930

Author:

:

Vote:

SENATE HUMAN SERVICES COMMITTEE: 4-0, 6/14/16

AYES: McGuire, Hancock, Liu, Nguyen

NO VOTE RECORDED: Berryhill

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/11/16

AYES: Lara, Bates, Beall, Hill, McGuire, Mendoza, Nielsen

ASSEMBLY FLOOR: 77-0, 6/1/16 - See last page for vote

SUBJECT:

SOURCE: UDW/AFSCME Local 3930

California Association of Public Authorities

DIGEST: This bill establishes the In-Home Supportive Services (IHSS) Family Caregiver Benefits Advisory Committee for the purpose of studying and providing a report on employment-based supports and protections for IHSS providers.

ANALYSIS:

Existing law:

1. Establishes the IHSS program to provide defined supportive services for aged, blind, or disabled persons who are unable to perform the services themselves and who cannot safely remain in their homes unless such services are provided. Those supportive services include, but are not limited to, domestic services, heavy cleaning, personal care services, and accompaniment during travel to health-related appointments or to alternative resource sites, yard hazard abatement, protective supervision, and paramedical services, as defined. (WIC 12300 et seq.)
2. Establishes county authority to contract with a nonprofit consortium or a public authority for the delivery of IHSS supportive services. Requires those nonprofit consortia and public authorities to establish a registry in order to assist IHSS recipients with hiring providers, and to investigate the background and qualifications of potential providers, as specified. (WIC 12301.6)
3. Requires that the application for IHSS services shall contain a notice to the recipient of services that his or her provider or providers will be given written notice of the recipient’s authorized services, and full number of services hours allotted to the recipient. The application shall inform recipients of the Medi-Cal toll-free telephone fraud hotline and Internet Web site for reporting suspected fraud or abuse in the provision or receipt of supportive services. (WIC 12301.15)
4. Provides that an authorized recipient of IHSS supportive services shall direct those authorized services, and that authorized services shall be performed by a provider or providers within a workweek and in a manner that complies with the requirements, as specified. (WIC 12300.4)
5. Maintains an IHSS recipient's right to hire, fire, and supervise the work of any IHSS provider, regardless of the employer responsibilities of a public authority or nonprofit consortium, as specified. (WIC 12301.6)

This bill:

1. Creates the IHSS Family Caregiver Benefits Advisory Committee to describe the availability of, and barriers to, employment-based supports and protections, including, but not limited to, federal Social Security benefits and state unemployment insurance benefits, and to study the impact that lack of access to these supports and protections has on IHSS providers who care for specified family members, and their communities.
2. Requires the advisory committee to be made up of not more than 11 individuals, and further requires those individuals to represent specified entities, including, but not limited to, academic entities and nonprofit organizations, the California Department of Social Services (CDSS), IHSS public authorities, labor organizations that represent IHSS providers, and IHSS providers and consumers.
3. Permits the Governor to appoint not more than nine individuals to the advisory committee and requires that individuals appointed by the Governor may include only representatives from specified groups.
4. Requires the Speaker of the Assembly and the Senate Committee on Rules to each appoint one individual to the advisory committee, as specified.
5. Requires that appointments made to the advisory committee include representatives from all groups, as specified.
6. Requires, by January 1, 2018, the advisory committee to provide a peer-reviewed report to designated Legislative committees that includes a summary of findings and recommendations on steps the state could take to ensure that all IHSS providers who provide care for specified family members have access to employment-based supports and protections, as specified.
7. Provides that the provisions of the bill shall remain in effect only until January 1, 2019, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2019, deletes or extends that date.

Background

The IHSS program, which is administered by CDSS, provides in-home services for low-income individuals who are at least 65 years of age, blind and/or disabled and unable to perform the services themselves and who cannot safely remain in their homes unless these services are provided. IHSS recipients need those services in order to avoid out-of-home care.

IHSS services may include domestic and related services, like housework, meal preparation, laundry and shopping; personal care services; accompaniment to medical appointments; protective supervision for recipients who may place themselves at risk for injury; and hazard or accident and paramedical services when directed by a physician.

County welfare departments notify IHSS recipients which services are approved, how much time is authorized for each service, and the total authorized monthly hours. IHSS recipients are responsible for hiring, firing, directing and supervising their IHSS provider. These responsibilities include some administrative duties, such as scheduling and signing timesheets. However, CDSS handles IHSS payroll.

Providers must complete an enrollment process, including submitting fingerprints for a criminal background screening and participating in an orientation prior to receiving payment for services.

Approximately 464,000 Californians receive IHSS and about 99% of recipients receive IHSS as a Medicaid benefit. There are currently about 433,400 IHSS providers in the state. Approximately 69 percent of them are relatives and about 50 percent are live-in providers.

IHSS Exclusion from certain employment benefits

Access to some employment-based benefits and protections are limited for certain IHSS providers, particularly if a provider is related to the IHSS consumer. According to IHSS provider training materials from CDSS, "some family members, especially spouses and parents of consumers, are not eligible to have Social Security (FICA) funds withheld from paychecks" and "Unemployment Insurance benefits may be available to you if you are not the parent or spouse of your employer/recipient and become unemployed, able and available to work and you meet certain eligibility requirements."

CDSS cites existing state and federal laws as the reason why spouses and parents are generally not subject to Social Security, Medicaid and unemployment benefits.

Existing federal law requires employers to withhold and match Social Security and Medicare taxes from an employee’s wages, which are then used to fund the employee’s future Social Security and Medicare benefits. However, wages earned while providing IHSS services by a spouse, child or parent are not subject to these withholdings, making these providers ineligible to receive such benefits.

Specifically, the Federal Insurance Contribution Act (FICA) requires employers to withhold taxes from the wages an individual receives for employment. The employer matches the amount of these withholdings, which together are used to fund the employee’s future Social Security and Medicare benefits. The Internal Revenue Code (IRC) section 3121 (b) defines “employment” as any service an employee performs for an employer. The IRC contains an exception to this definition for family employment (IRC section 3121(b) (3)). The “family employment exception” applies to service in a private home “in the employ of an individual’s son, daughter, or spouse.” In those cases, according to the IRS, no actual employment relationship exists.

As a result, the CDSS has determined that wages paid through IHSS to parent or spouse providers fall under the “family employment exception” and therefore are exempt from employment taxes such as FICA and state UI.

Additionally, Section 631 of the California Unemployment Insurance Code states, in part, that “Employment” does not include service performed by … an individual in the employ of his (or her) son, daughter, or spouse. Therefore, these family employees are excluded from Unemployment Insurance (UI), Employment Training Tax, and State Disability Insurance coverage.

In order to change the benefits to this subset of IHSS workers, changes in federal and state law are likely necessary. According to the author, some people argue that “this is a federal issue and that any remedy for this situation can only be pursued on a federal level. Though we agree that this problem originates in federal code, we believe there may be steps the state can take to resolve the issue or, at the least, mitigate the negative economic impacts. The first step would be to bring together policy experts, lawmakers, and individuals directly impacted by this problem in order to thoroughly analyze and understand it. After studying the problem, it will be possible to determine what else the state can do to address this issue.”

Related/Prior Legislation

SB 1036 (Senate Budget and Fiscal Review Committee, Chapter 45, Statutes of 2012) established the IHSS Statewide Authority for purposes of collective bargaining.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee, this bill would likely have the following fiscal effect:

• Estimated costs to the CDSS of $373,000 in fiscal year 2016-17 and $331,000 in fiscal year for administrative costs to support the advisory group, assuming the committee will meet quarterly. This includes three new staffing positions to assist in staffing the committee and to prepare the peer-reviewed report. (GF)
• Costs to CDSS of $97,000 for fiscal years 2016-17 and 2017-18 for transportation and meeting expenses for committee members, county representatives, IHSS providers, IHSS recipients and their providers and for legal research and consultation. (GF)
• Significant cost to CDSS of $250,000 for fiscal years 2016-17 and 2017-18 for an external contract with the University of California to complete the study and peer-reviewed report. (GF)
• Likely significant cost pressure to implement any recommendations that the advisory committee produces.

SUPPORT: (Verified 8/12/16)

UDW/AFSCME Local 3930 (co-source)

The California Association of Public Authorities (co-source)

American Federation of State, County and Municipal Employees

California Alliance for Retired Americans

California Health Advocates

Centro Laboral de Graton

Coalition for Humane Immigrant Rights of Los Angeles

Congress of California Seniors

GABRIELA San Francisco

Justice in Aging

National Employment Law Project

Pilipino Workers Center of Southern California

San Francisco Senior Disability Action

The California Commission on Aging

The California Domestic Workers Coalition

The California Labor Federation

The Coalition of Welfare Rights Organizations

The Instituto de Educacion Popular del Sur de California

The Personal Assistance Services Council

The Los Angeles County IHSS Public Authority

OPPOSITION: (Verified 8/12/16)

California Department of Finance

ARGUMENTS IN SUPPORT: According to the author, individuals who provide services through the IHSS program to their child or spouse are not allowed to contribute towards social security, Medicare, or state unemployment insurance (UI). This means that when they retire, if they become disabled, or if they lose their jobs, these hard-working caregivers do not have access to our nation’s most important programs for seniors and the uninsured, per the author. The author also states that this situation has resulted in terrible economic hardship for tens of thousands of IHSS workers who are at or near retirement age.

AB 1930 establishes an advisory committee to study how the exclusion from certain employment-based supports and protections, such as Social Security, impacts the economic security of individuals who provide these critical services and their communities. This committee includes policy experts from the field and the administration as well as individuals who are directly impacted by the exclusion. AB 1930 would require the committee to provide a peer-reviewed report to the Legislature by January 1, 2018 with a summary of the findings and recommendations on steps the state can take to ensure that all IHSS providers who provide supportive services to a spouse or child have access to all employment-based supports and protections, including federal Social Security benefits.

ARGUMENTS IN OPPOSITION: The Department of Finance is “opposed to this bill because it results in additional General Fund costs that are not included in the Administration’s current fiscal plan.”

ASSEMBLY FLOOR: 77-0, 6/1/16

AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd, Eggman, Frazier, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Rendon

NO VOTE RECORDED: Dahle, Beth Gaines, Harper

Prepared by:

8/15/16 19:36:10

**** END ****

SENATE COMMITTEE ON

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

AB 1930 (Lackey) - In-home supportive services: family caregivers: advisory committee

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

AB 1930 would create the In-Home Supportive Services (IHSS) Family Caregiver Benefits Advisory Committee, as specified, to study and provide a report on employment-based supports and protections for IHSS providers.

Fiscal Impact:

• Estimated costs to the Department of Social Services (DSS) of $373,000 in fiscal year 2016-17 and $331,000 in fiscal year for administrative costs to support the advisory group, assuming the committee will meet quarterly. This includes three new staffing positions to assist in staffing the committee and to prepare the peer-reviewed report. (GF)
• Costs to DSS of $97,000 for fiscal years 2016-17 and 2017-18 for transportation and meeting expenses for committee members, county representatives, IHSS providers, IHSS recipients and their providers and for legal research and consultation. (GF)
• Significant cost to DSS of $250,000 for fiscal years 2016-17 and 2017-18 for an external contract with the University of California to complete the study and peer-reviewed report. (GF)
• Likely significant cost pressure to implement any recommendations that the advisory committee produces.

Background:

The Internal Revenue Code defines “employment” as any service an employee performs for an employer, but contains an exception to this definition for family employment. This exception applies to service in a private home “in the employ of an individual’s son, daughter, or spouse.” In these cases, according to the IRS, no employment relationship exists. As a result, the CDSS has determined that wages paid through IHSS to parent or spouse providers fall under this exception and are exempt from employment taxes which are typically matched to fund the employee’s future Social Security and Medicare benefits.

Additionally, Section 631 of the California Unemployment Insurance Code states that “employment’ does not include service performed by an individual in the employ of his son, daughter, or spouse. These family employees are therefore also excluded from Unemployment Insurance, Employment Training Tax, and State Disability Insurance coverage.

Proposed Law:

This bill creates an advisory committee, housed within the State Department of Social Services, to describe the availability of, and barriers to accessing, employment-based supports and protections, including, but not limited to, federal social security benefits and state unemployment insurance benefits. This advisory committee would also study the impact of the lack of access to these supports and protections on the lives and communities of individuals who provide the supportive services to a spouse or child.

The advisory committee would be made up of between eight and 11 individuals, inclusive, composed of an individual appointed by the Speaker of the Assembly, an individual appointed by the Senate Committee on Rules, and not more than nine individuals appointed by the Governor including, but not limited to, representatives from the following groups:

• Academic entities with expertise in the subject matter
• Nonprofit organizations related to IHSS
• The State Department of Social Services
• County governments
• IHSS public authorities
• Current IHSS providers who are a parent or spouse of the individual receiving the personal assistance services
• Individuals who are current or past consumers of personal assistance services provided through IHSS
• Labor organizations that are designated representative of providers of personal assistance services funded as IHSS

On or before January 1, 2018, the advisory committee would be required to provide a report to specified Legislative committees including a summary of their findings and recommendations on steps that the state can take to ensure that all IHSS providers supporting a child or spouse have access to employment-based supports and protections, as specified. This report must be peer reviewed by the academic entity included in the committee.

This bill would remain in effect until January 1, 2019 unless a statute deletes or extends that date.

-- END --

SENATE COMMITTEE ON HUMAN SERVICES

Senator McGuire, Chair

2015 - 2016 Regular

Bill No: AB 1930

Subject: In-home supportive services: family caregivers: advisory committee

SUMMARY

Establishes the In-Home Supportive Services (IHSS) Family Caregiver Benefits Advisory Committee for the purpose of studying and providing a report on employment-based supports and protections for IHSS providers.

ABSTRACT

Existing law:

1. Establishes the IHSS program to provide defined supportive services for aged, blind, or disabled persons who are unable to perform the services themselves and who cannot safely remain in their homes unless such services are provided. Those supportive services include, but are not limited to, domestic services, heavy cleaning, personal care services, and accompaniment during travel to health-related appointments or to alternative resource sites, yard hazard abatement, protective supervision, and paramedical services, as defined. (WIC 12300 et seq.)
2. Establishes county authority to contract with a nonprofit consortium or a public authority for the delivery of IHSS supportive services. Requires those nonprofit consortia and public authorities to establish a registry in order to assist IHSS recipients with hiring providers, and to investigate the background and qualifications of potential providers, as specified. (WIC 12301.6)
3. Requires that the application for IHSS services shall contain a notice to the recipient of services that his or her provider or providers will be given written notice of the recipient’s authorized services, and full number of services hours allotted to the recipient. The application shall inform recipients of the Medi-Cal toll-free telephone fraud hotline and Internet Web site for reporting suspected fraud or abuse in the provision or receipt of supportive services. (WIC 12301.15)
4. Provides that an authorized recipient of IHSS supportive services shall direct those authorized services, and that authorized services shall be performed by a provider or providers within a workweek and in a manner that complies with the requirements, as specified. (WIC 12300.4)
5. Maintains an IHSS recipient's right to hire, fire, and supervise the work of any IHSS provider, regardless of the employer responsibilities of a public authority or nonprofit consortium, as specified. (WIC 12301.6)

This bill:

1. Creates the IHSS Family Caregiver Benefits Advisory Committee to describe the availability of, and barriers to, employment-based supports and protections, including, but not limited to, federal Social Security benefits, and to study the impact that lack of access to these supports and protections has on IHSS providers who care for specified family members, and their communities.
2. Requires the advisory committee to be made up of not more than 15 individuals, and further requires those individuals to represent specified entities, including, but not limited to, academic entities and nonprofit organizations, the California Department of Social Services (CDSS), IHSS public authorities, labor organizations that represent IHSS providers, and IHSS providers and consumers.
3. Requires the Governor, the Speaker of the Assembly, and the Senate Committee on Rules to each, after consulting with labor organizations that represent IHSS providers, appoint not more than five members to the advisory committee.
4. Requires, by January 1, 2018, the advisory committee to provide a peer-reviewed report to designated Legislative committees that includes a summary of findings and recommendations on steps the state could take to ensure that all IHSS providers who provide care for specified family members have access to employment-based supports and protections, as specified.

FISCAL IMPACT

According to the Assembly Appropriations Committee, this bill may result in unknown costs, but likely in the range of $70,750 to $152,000 (General Fund) to staff the advisory committee and produce the report. The analysis notes that the bill is silent on where the advisory committee will be housed, but it will likely require one to two personnel years, given the complexity of the study required. Per the analysis, there will also likely be significant cost pressure to implement any recommendations.

BACKGROUND AND DISCUSSION

Purpose of the bill:

According to the author, individuals who provide services through the IHSS program to their child or spouse are not allowed to contribute towards social security, Medicare, or state unemployment insurance (UI). This means that when they retire, if they become disabled, or if they lose their jobs, these hard-working caregivers do not have access to our nation’s most important programs for seniors and the uninsured, per the author. The author also states that this situation has resulted in terrible economic hardship for tens of thousands of IHSS workers who are at or near retirement age. It also results in indirect costs to taxpayers as hard-working seniors are forced into poverty and reliance on state public assistance programs, according to the author.

AB 1930 establishes an advisory committee to study how the exclusion from certain employment-based supports and protections, such as Social Security, impacts the economic security of individuals who provide these critical services and their communities. This committee includes policy experts from the field and the administration as well as those directly impacted by the exclusion. AB 1930 would require the committee to provide a peer-reviewed report to the Legislature by January 1, 2018 with a summary of the findings and recommendations on steps the state can take to ensure that all IHSS providers who provide supportive services to a spouse or child have access to all employment-based supports and protections, including federal Social Security benefits.

In Home Support Services

The IHSS program, which is administered by CDSS, provides in-home services for low-income individuals who are at least 65 years of age, blind and/or disabled and unable to perform the services themselves and who cannot safely remain in their homes unless these services are provided. IHSS recipients need those services in order to avoid out-of-home care.

IHSS services may include domestic and related services, like housework, meal preparation, laundry and shopping; personal care services; accompaniment to medical appointments; protective supervision for recipients who may place themselves at risk for injury; and hazard or accident and paramedical services when directed by a physician.

County welfare departments notify IHSS recipients which services are approved, how much time is authorized for each service, and the total authorized monthly hours. IHSS recipients are responsible for hiring, firing, directing and supervising their IHSS provider. These responsibilities include some administrative duties, such as scheduling and signing timesheets. However, CDSS handles IHSS payroll.

Providers must complete an enrollment process, including submitting fingerprints for a criminal background screening and participating in an orientation prior to receiving payment for services.

Approximately 464,000 Californians receive IHSS and about 99% of recipients receive IHSS as a Medicaid benefit. There are currently about 433,400 IHSS providers in the state. Approximately 69% of them are relatives and about 50% are live-in providers.

IHSS Exclusion from certain employment benefits

Access to some employment-based benefits and protections are limited for certain IHSS providers, particularly if a provider is related to the IHSS consumer. According to IHSS provider training materials from CDSS, "some family members, especially spouses and parents of consumers, are not eligible to have Social Security (FICA) funds withheld from paychecks" and "Unemployment Insurance benefits may be available to you if you are not the parent or spouse of your employer/recipient and become unemployed, able and available to work and you meet certain eligibility requirements."

CDSS cites existing state and federal laws as the reason why spouses and parents are generally not subject to Social Security, Medicaid and unemployment benefits.

Existing federal law requires employers to withhold and match Social Security and Medicare taxes from an employee’s wages, which are then used to fund the employee’s future Social Security and Medicare benefits. However, wages earned while providing IHSS services by a spouse, child or parent are not subject to these withholdings, making these providers ineligible to receive such benefits.

Specifically, the Federal Insurance Contribution Act (FICA) requires employers to withhold taxes from the wages an individual receives for employment. The employer matches the amount of these withholdings, which together are used to fund the employee’s future Social Security and Medicare benefits. The Internal Revenue Code (IRC) section 3121 (b) defines “employment” as any service an employee performs for an employer. The IRC contains an exception to this definition for family employment (IRC section 3121(b) (3)). The “family employment exception” applies to service in a private home “in the employ of an individual’s son, daughter, or spouse.” In those cases, according to the IRS, no actual employment relationship exists.

As a result, the CDSS has determined that wages paid through IHSS to parent or spouse providers fall under the “family employment exception” and therefore are exempt from employment taxes such as FICA and state UI.

Additionally, Section 631 of the California Unemployment Insurance Code states, in part, that “Employment” does not include service performed by … an individual in the employ of his (or her) son, daughter, or spouse. Therefore, these family employees are excluded from Unemployment Insurance (UI), Employment Training Tax, and State Disability Insurance coverage.

In order to change the benefits to this subset of IHSS workers, changes in federal and state law are likely necessary. According to the author, “Those who oppose this bill will argue that this is a federal issue and that any remedy for this situation can only be pursued on a federal level. Though we agree that this problem originates in federal code, we believe there may be steps the state can take to resolve the issue or, at the least, mitigate the negative economic impacts. The first step would be to bring together policy experts, lawmakers, and individuals directly impacted by this problem in order to thoroughly analyze and understand it. After studying the problem, it will be possible to determine what else the state can do to address this issue.”

Related legislation:

SB 1036 (Senate Budget and Fiscal Review Committee, Chapter 45, Statutes of 2012) established the IHSS Statewide Authority for purposes of collective bargaining.

COMMENTS

The bill creates an advisory committee but is silent on where it will be housed and who will staff it. The bill also requires the Governor, the Assembly Speaker and the Senate Rules Committee to each appoint up to five members of the advisory committee, but lacks direction on coordination, vacancies, and other details, except to require appointing authority to consult with labor organizations that represent IHSS workers. Therefore, the committee recommends the following amendments:

WIC 12335

(a) There is hereby established, within the State Department of Social Services, the In-Home Supportive Services Family Caregiver Benefits Advisory Committee, for the purpose of describing the availability of, and barriers to accessing, employment-based supports and protections, including, but not limited to, federal Social Security benefits, and studying the impact of the lack of access to these supports and protections on the lives and communities of individuals who provide the supportive services described in this article to a spouse or as the parent of a recipient child.

(b) The advisory committee shall be comprised of no less than 8 and not more than 11 15 individuals. The Governor may appoint up to 9 members, and shall include representatives from the following groups:

(1) Academic entities and nonprofit organizations with expertise in the subject matter of the report described in subdivision (d).

(2) The State Department of Social Services.

(3) The Department of Finance.

(4) The Legislative Analyst’s Office.

(35) County governments.

(46) IHSS public authorities.

(57) Individuals who are current providers of personal assistance services funded as in-home supportive services pursuant to this article and who are a parent or spouse of the person receiving those services.

(68) Individuals who are current or past consumers of personal assistance services provided through the IHSS program.

(79) Labor organizations that represent IHSS providers that are the designated representatives of providers of personal assistance services funded as IHSS pursuant to this article.

(c) The Governor, the Speaker of the Assembly and the Senate Committee on Rules shall each appoint not more than five members one individual to the advisory committee. Prior to appointing members to the advisory committee, the Governor, the Speaker of the Assembly and the Senate Committee on Rules shall consult with labor organizations that represent IHSS providers regarding the appointments.

PRIOR VOTES

POSITIONS

Support:

UDW/AFSCME Local 3930 (Co-Sponsor)

California Association of Public Authorities (Co-Sponsor)

California Alliance for Retired Americans (CARA)

California Health Advocates

Centro Laboral de Graton

Coalition for Humane Immigrant Rights of Los Angeles (CHIRLA)

Congress of California Seniors

GABRIELA San Francisco

Justice in Aging

National Employment Law Project

Pilipino Workers Center of Southern California

San Francisco Senior Disability Action

The American Federation of State, County and Municipal Employees (AFSCME)

The California Commission on Aging

The California Domestic Workers Coalition

The California Labor Federation

The Coalition of Welfare Rights Organizations (CCWRO)

The Instituto de Educacion Popular del Sur de California (IDEPSCA)

The Personal Assistance Services Council, the Los Angeles County IHSS Public Authority

Oppose:

None.

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 1930

Author:(Lackey)

As Amended Ver:May 27, 2016

Majority vote

SUMMARY: Establishes the In-Home Supportive Services (IHSS) Family Caregiver Benefits Advisory Committee for the purpose of studying, and providing a report on, employment-based supports and protections as they pertain to IHSS providers. Specifically, this bill:

1. Creates the IHSS Family Caregiver Benefits Advisory Committee to describe the availability of, and barriers to accessing, employment-based supports and protections, and to study the impact of lack of access to these supports and protections on IHSS providers of care for specified family members, and their communities.
2. Requires the advisory committee to be made up of not more than 15 individuals, and further requires those individuals to represent specified entities, including, but not limited to, the Department of Social Services (DSS), IHSS public authorities, labor organizations that represent IHSS providers, and IHSS providers and consumers.
3. Requires the Governor, the Speaker of the Assembly, and the Senate Committee on Rules to each, after consulting with labor organizations that represent IHSS providers, appoint not more than five members to the advisory committee.
4. Requires, by January 1, 2018, the advisory committee to provide a peer-reviewed report to certain Legislative committees that includes a summary of findings and recommendations on steps the state could take to ensure that all IHSS providers who provide care for specified family members have access to employment-based supports and protections, as specified.

EXISTING LAW:

1. Establishes the IHSS program to provide supportive services, including domestic, protective supervision, personal care, and paramedical services as specified, to individuals who are aged, blind, or living with disabilities, and who are unable to perform the services themselves or remain safely in their homes without receiving these services. (Welfare and Institutions Code Section (WIC) 12300 et seq.)
2. States that counties may choose to contract with a nonprofit consortium or establish a public authority for the provision of IHSS services. Requires nonprofit consortia and public authorities to, among other things, establish a registry to assist recipients in locating IHSS providers, and to investigate the background and qualifications of potential providers, as specified. (WIC 12301.6)
3. Maintains an IHSS recipient's right to hire, fire, and supervise the work of any IHSS provider, regardless of the employer responsibilities of a public authority or nonprofit consortium, as specified. (WIC 12301.6)
4. Requires the application for IHSS to contain a notice to the recipient that his or her provider(s) will be given written notice of the recipient's authorized services and allotted hours and further requires the application to inform recipients of specified Medi-Cal contact information for reporting fraud or abuse. (WIC 12301.15)

FISCAL EFFECT: According to the Assembly Appropriations Committee, this bill may result in the following:

1. Unknown costs, but likely in the range of $70,750 to $152,000 (General Fund) to staff the advisory committee and produce the report. The bill is silent on where the advisory committee will be housed, but it will likely require one to two personnel years, given the complexity of the study required.
2. Likely significant cost pressure to implement any recommendations.

COMMENTS:

In-Home Supportive Services: The IHSS program enables low-income individuals who are at least 65 years old, living with disabilities, or blind to remain in their own homes by paying for care providers to assist with personal care services (such as toileting, bathing, and grooming), domestic and related services (meal preparation, housecleaning, and the like), paramedical services, and protective supervision. Approximately 464,000 Californians receive IHSS, with approximately 99% receiving it as a Medicaid benefit.

When an individual is determined eligible for IHSS services by a county social worker, he or she is authorized for a certain number of hours of care. IHSS recipients are responsible for hiring, firing, directing, and supervising their IHSS workers. These responsibilities include some administrative duties, such as scheduling and signing timesheets; however, the state handles payroll. There are currently about 433,400 IHSS providers in the state; approximately 69% are relatives and an estimated 50% are live-in. Providers must complete an enrollment process, including submitting fingerprint images for a criminal background check and participating in a provider orientation prior to receiving payment for services.

Access to some employment-based benefits and protections may be limited for certain IHSS providers, particularly if a provider is related to the IHSS consumer. According to IHSS provider training materials from DSS, "some family members, especially spouses and parents of consumers, are not eligible to have Social Security (FICA) funds withheld from paychecks," and "Unemployment Insurance benefits may be available to you if you are not the parent or spouse of your employer/recipient and become unemployed, able and available to work and you meet certain eligibility requirements."

Need for this bill: According to the author, this bill "would establish an advisory committee to study how this exclusion [of certain relative IHSS providers from Social Security, Medicare, and unemployment insurance coverage] impacts the economic security of individuals who provide these critical services and their communities. This committee would include policy experts as well as those directly impacted by the exclusion. The committee would be tasked with drafting a report to the Legislature with recommendations on steps the state can take to ensure that all IHSS providers have access to social security, Medicare, and unemployment insurance. Over several decades, the fact that these workers cannot access Social Security, Medicare or Unemployment Insurance benefits has resulted in terrible economic hardship for tens of thousands of IHSS workers who are at or near retirement age. It also results in indirect costs to taxpayers as hard working seniors are forced into poverty and reliance on state public assistance programs. It is worth exploring why benefits that are provided to one category of workers that are denied to another category of workers in the same program."

Analysis Prepared by: Daphne Hunt / HUM. S. / (916) 319-2089 FN: 0003254

Date of Hearing: April 13, 2016

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 1930

Author:(Lackey) – As Amended Ver:March 28, 2016

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY: This bill establishes the In-Home Supportive Services (IHSS) Family Caregiver Benefits Advisory Committee for the purpose of studying, and providing a report on, employment-based supports and protections as they pertain to IHSS providers. Specifically, this bill:

1. Creates the IHSS Family Caregiver Benefits Advisory Committee to describe the availability of, and barriers to accessing, employment-based supports and protections, and to study the impact of lack of access to these supports and protections on IHSS providers of care for specified family members, and their communities.
2. Requires the advisory committee to be made up of not more than 15 individual from specified entities, including, the Department of Social Services (DSS), the Department of Finance (DOF), the Legislative Analyst's Office (LAO), County governments, IHSS public authorities, labor organizations that represent IHSS providers, and IHSS providers and consumers.
3. Requires the Governor, the Speaker of the Assembly, and the Senate Committee on Rules, after consulting with labor organizations that represent IHSS providers, to each appoint not more than five members to the advisory committee.
4. Requires, by January 1, 2018, the advisory committee to provide a peer-reviewed report to certain Legislative committees that includes a summary of findings and recommendations on steps the state could take to ensure that all IHSS providers who provide care for specified family members have access to employment-based supports and protections, as specified.

FISCAL EFFECT:

1. Unknown costs, but likely in the range of $70,750 to $152,000 (GF) to staff the advisory committee and produce the report. The bill is silent on where the advisory committee will be housed, but it will likely require 1 - 2 PYs, given the complexity of the study required.
2. Likely significant cost pressure to implement any recommendations.

COMMENTS:

1. Purpose. According to the author, "Over several decades, the fact that some IHSS workers cannot access Social Security, Medicare or Unemployment Insurance benefits has resulted in terrible economic hardship for tens of thousands of IHSS workers who are at or near retirement age. It also results in indirect costs to taxpayers as hard working seniors are forced into poverty and reliance on state public assistance programs. It is worth exploring why benefits that are provided to one category of workers are denied to another category of workers in the same program.” This bill seeks to study and report on this issue.
2. Background. The IHSS program enables low-income individuals who are at least 65 years old, living with disabilities, or blind to remain in their own homes by paying for care providers to assist with personal care services (such as toileting, bathing, and grooming), domestic and related services (meal preparation, housecleaning, and the like), paramedical services, and protective supervision. Approximately 464,000 Californians receive IHSS.

When an individual is determined eligible for IHSS services by a county social worker, he or she is authorized for a certain number of hours of care. IHSS recipients are responsible for hiring, firing, directing, and supervising their IHSS workers. These responsibilities include some administrative duties, such as scheduling and signing timesheets; however, the state handles payroll. There are currently about 433,400 IHSS providers in the state; approximately 69% are relatives and an estimated 50% are live-in.

Access to some employment-based benefits and protections may be limited for certain IHSS providers, particularly if a provider is related to the IHSS consumer. For example, spouses and parents of consumers are not eligible to have Social Security (FICA) funds withheld from paychecks, or for Unemployment Insurance benefits.

1. Committee Concerns.
2. The bill creates an advisory committee but is silent on where it will be housed and who will staff it. Should the bill move forward the author and/or the committee may wish to consider clarifying this issue.
3. The bill requires the Governor, the Assembly Speaker and the Senate Rules Committee to each appoint up to five members of the advisory committee, but lacks direction on coordination, vacancies, and other details. Should the bill move forward, the author and/or the committee may wish to consider clarifying this process.

Analysis Prepared by: Jennifer Swenson / APPR. / (916) 319-2081

Date of Hearing: March 29, 2016

ASSEMBLY COMMITTEE ON HUMAN SERVICES

Susan Bonilla, Chair

ABPCA Bill Id:AB 1930 (

Author:Lackey) – As Amended Ver:March 28, 2016

SUBJECT: In-home supportive services: family caregivers: advisory committee

SUMMARY: Establishes the In-Home Supportive Services (IHSS) Family Caregiver Benefits Advisory Committee for the purpose of studying, and providing a report on, employment-based supports and protections as they pertain to IHSS providers.

Specifically, this bill:

1. Creates the IHSS Family Caregiver Benefits Advisory Committee to describe the availability of, and barriers to accessing, employment-based supports and protections, and to study the impact of lack of access to these supports and protections on IHSS providers of care for specified family members, and their communities.
2. Requires the advisory committee to be made up of not more than 15 individuals, and further requires those individuals to represent specified entities, including, but not limited to, the Department of Social Services (DSS), IHSS public authorities, labor organizations that represent IHSS providers, and IHSS providers and consumers.
3. Requires the Governor, the Speaker of the Assembly, and the Senate Committee on Rules to each, after consulting with labor organizations that represent IHSS providers, appoint not more than five members to the advisory committee.
4. Requires, by January 1, 2018, the advisory committee to provide a peer-reviewed report to certain Legislative committees that includes a summary of findings and recommendations on steps the state could take to ensure that all IHSS providers who provide care for specified family members have access to employment-based supports and protections, as specified.

EXISTING LAW:

1. Establishes the IHSS program to provide supportive services, including domestic, protective supervision, personal care, and paramedical services as specified, to individuals who are aged, blind, or living with disabilities, and who are unable to perform the services themselves or remain safely in their homes without receiving these services. (WIC 12300 et seq.)
2. States that counties may choose to contract with a nonprofit consortium or establish a public authority for the provision of IHSS services. Requires nonprofit consortia and public authorities to, among other things, establish a registry to assist recipients in locating IHSS providers, and to investigate the background and qualifications of potential providers, as specified. (WIC 12301.6)
3. Maintains an IHSS recipient’s right to hire, fire, and supervise the work of any IHSS provider, regardless of the employer responsibilities of a public authority or nonprofit consortium, as specified. (WIC 12301.6)
4. Requires the application for IHSS to contain a notice to the recipient that his or her provider(s) will be given written notice of the recipient’s authorized services and allotted hours and further requires the application to inform recipients of specified Medi-Cal contact information for reporting fraud or abuse. (WIC 12301.15)

FISCAL EFFECT: Unknown.

COMMENTS:

In-Home Supportive Services: The IHSS program enables low-income individuals who are at least 65 years old, living with disabilities, or blind to remain in their own homes by paying for care providers to assist with personal care services (such as toileting, bathing, and grooming), domestic and related services (meal preparation, housecleaning, and the like), paramedical services, and protective supervision. Approximately 464,000 Californians receive IHSS, with approximately 99% receiving it as a Medicaid benefit.

When an individual is determined eligible for IHSS services by a county social worker, he or she is authorized for a certain number of hours of care. IHSS recipients are responsible for hiring, firing, directing, and supervising their IHSS workers. These responsibilities include some administrative duties, such as scheduling and signing timesheets; however, the state handles payroll. There are currently about 433,400 IHSS providers in the state; approximately 69% are relatives and an estimated 50% are live-in. Providers must complete an enrollment process, including submitting fingerprint images for a criminal background check and participating in a provider orientation prior to receiving payment for services.

Access to some employment-based benefits and protections may be limited for certain IHSS providers, particularly if a provider is related to the IHSS consumer. According to IHSS provider training materials from DSS, “some family members, especially spouses and parents of consumers, are not eligible to have Social Security (FICA) funds withheld from paychecks,” and “Unemployment Insurance benefits may be available to you if you are not the parent or spouse of your employer/recipient and become unemployed, able and available to work and you meet certain eligibility requirements.”

Need for this bill: According to the author, this bill “would establish an advisory committee to study how this exclusion [of certain relative IHSS providers from Social Security, Medicare, and unemployment insurance coverage] impacts the economic security of individuals who provide these critical services and their communities. This committee would include policy experts as well as those directly impacted by the exclusion. The committee would be tasked with drafting a report to the Legislature with recommendations on steps the state can take to ensure that all IHSS providers have access to social security, Medicare, and unemployment insurance. Over several decades, the fact that these workers cannot access Social Security, Medicare or Unemployment Insurance benefits has resulted in terrible economic hardship for tens of thousands of IHSS workers who are at or near retirement age. It also results in indirect costs to taxpayers as hard working seniors are forced into poverty and reliance on state public assistance programs. It is worth exploring why benefits that are provided to one category of workers that are denied to another category of workers in the same program.”

Staff comments: This bill as currently written requires the IHSS Family Caregiver Benefits Advisory Committee to be composed of up to 15 individuals representing specified entities. It further requires the Governor, the Speaker of the Assembly, and the Senate Committee on Rules to each appoint not more than five members to the advisory committee. However, this bill does not offer clear direction on which vacancies each of the appointing authorities is to fill, and the manner in which these vacancies are to be filled. This could lead to confusion both in establishing the original composition of the advisory committee, and also in filling any vacancies that may arise during the committee’s tenure. Therefore, should this bill move forward, the author may wish to consider including clear direction on each appointing authority’s purview and responsibilities regarding the filling of vacancies on the advisory committee.

REGISTERED SUPPORT / OPPOSITION:

Support

American Federation of State, County & Municipal Employees (AFSCME)

California Alliance for Retired Americans (CARA)

California Domestic Workers Coalition

California Labor Federation

Coalition of California Welfare Rights Organization (CCWRO)

Congress of California Seniors

Justice in Aging

National Employment Law Project

Personal Assistance Services Council

UDW/AFSCME Local 3930 – sponsor

Opposition

None on file.

Analysis Prepared by: Daphne Hunt / HUM. S. / (916) 319-2089