El Dorado County Municipal Code Ch. 8.78 County in-Home Supportive Services Public Authority

As required by Welfare and Institutions Code § 12302.25, the Board of Supervisors hereby establishes a public authority, separate and apart from the County, whose powers are derived from and consistent with the provisions of Welfare and Institutions Code § 12301.6, as may be amended from time to time. The purpose of this public authority is to provide for the delivery of the in-home supportive services program (IHSS) as specified in this chapter, subject to all applicable Federal and State laws and regulations, and to the limitations set forth in this chapter.

(Code 1997, § 8.78.010; Ord. No. 4612, 9-24-2002)

For the purposes of this chapter, the following definitions apply, except where the context clearly indicates a different meaning:

Authority means the County In-Home Supportive Services Public Authority.

Consumer means a person who is a current or past user of personal assistance services paid through public or private funds, and includes a recipient of assistance from IHSS.

IHSS means in-home supportive services as described in Welfare and Institutions Code § 12300(a), (b) et seq., as amended from time to time.

Provider means a person who provides authorized in-home supportive services to a recipient.

Recipient means a person eligible and authorized to receive in-home supportive services pursuant to Welfare and Institutions Code § 12300 et seq.

(Code 1997, § 8.78.020; Ord. No. 4612, 9-24-2002)

A. The Board of Supervisors establishes a public authority whose powers and authority are derived from and consistent with the provisions of Welfare and Institutions Code § 12300 et seq. The public authority shall be known as the County In-Home Supportive Services Public Authority and shall be referred to as the "Authority."

B. The governing body of the Authority shall be the members of the County Board of Supervisors.

(Code 1997, § 8.78.030; Ord. No. 4612, 9-24-2002)

The County Board of Supervisors has established an IHSS Advisory Committee in compliance with Welfare and Institutions Code § 12301.3. The membership of the Advisory Committee, the process for recruitment, appointment, residency requirements and terms of office have been established by previous Board of Supervisors' action. One of the statutory responsibilities of the Advisory Committee is to serve in an advisory capacity to the Public Authority.

A. Membership. Welfare and Institutions Code § 12301.3 requires:

1. Each county shall appoint an in-home supportive services advisory committee that shall be comprised of not more than 11 individuals. No less than 50 percent of the membership of the advisory committee shall be individuals who are current or past users of personal assistance services paid for through public or private funds or as recipients of services under this chapter.

2. Prior to the appointment of members to a committee required by subdivision 1, the County Board of Supervisors shall solicit recommendations for qualified members through a fair and open process that includes the provision of reasonable written notice to, and reasonable response time by, members of the general public and interested persons and organizations.

B. Responsibility. Welfare and Institutions Code § 12301.4 requires that each advisory committee established pursuant to Welfare and Institutions Code § 12301.3 or 12301.6 shall provide ongoing advice and recommendations regarding in-home supportive services to the County Board of Supervisors, any administrative body in the County that is related to the delivery and administration of in-home supportive services, and the governing body and administrative agency of the public authority, nonprofit consortium, contractor, and public employees.

(Code 1997, § 8.78.040; Ord. No. 4612, 9-24-2002)

A. Character of the Authority. The County IHSS Public Authority shall be both of the following:

1. An entity separate and distinct from the County, and shall be required to file the statement required by Government Code § 53051; and

2. A corporate public body, exercising public and essential governmental functions, that has all the powers necessary or convenient to carry out the delivery of in-home supportive services in the County, including the power to contract for services pursuant to Welfare and Institutions Code §§ 12302 and 12303.3.

B. Status of Authority employees and providers. Employees of the County In-Home Supportive Services Public Authority and providers shall not be deemed to be employees of the County for any purpose.

C. Public Authority functions. The County IHSS Public Authority shall carry out the following functions to implement the goals and objectives of Welfare and Institutions Code § 12301.6, including, but not limited to:

1. The provision of assistance to recipients in finding in-home supportive services personnel through the establishment of a registry;

2. The investigation of the qualifications and background of potential in-home supportive services personnel;

3. The establishment of a referral system under which in-home supportive services personnel shall be referred to recipients;

4. The provision for training for providers and recipients. Notwithstanding this subsection, the Authority shall not be obligated to provide training directly, to pay for training provided privately or in the community, to pay for the providers' time spent in training, to accompany recipients to training, to pay for transportation to training or to pay for any materials required by the training. The Authority shall not be obligated to ensure that any provider or recipient attend or complete any training;

5. The performance of any other functions related to the delivery of in-home supportive services, including that within 30 days of commencement of the operation of the Public Authority, the Public Authority shall develop a written process to address consumer complaints regarding Public Authority services;

6. The assurance that the requirements of the personal care option pursuant to Subchapter 19, commencing with Section 1396, of Chapter 7 of Title 42 of the United States Code are met;

7. The adoption of rules and regulations for the administration of the Public Authority consistent with the provisions of this chapter;

8. The exercise of all powers, duties, and functions as are prescribed by statute or ordinance of the Board of Supervisors and the Authority;

9. The Authority shall not be responsible for authorizing services for an IHSS recipient;

10. The Authority shall not be responsible for determining a recipient's need for IHSS, the level and quality of services required, and the eligibility of individuals to be served.

11. The Authority shall not be responsible for conducting the initial or any subsequent assessment of need for services; and

12. The Authority shall not be responsible for terminating the recipient's participating in the IHSS program. The services and functions referenced in this section shall be the exclusive responsibility and within the sole discretion and determination of the County.

(Code 1997, § 8.78.050; Ord. No. 4612, 9-24-2002)

A. The Authority shall be an entity separate from the County and shall file the Statement of Fact for the Roster of Public Agencies required by Government Code § 53051.

B. The Authority shall be a corporate public body, exercising public and essential governmental functions with all powers necessary and convenient to carry out the powers conferred upon it by Welfare and Institutions Code § 12300 et seq., and this chapter, including the power to contract for services pursuant to Welfare and Institutions Code §§ 12302 and 12302.1, subject to any limitations set forth in this chapter.

C. The Authority shall have the power in its own name to do any of the following:

1. To contract for the services of planners, financial consultants, and other experts and, separate and apart therefrom, to employ such other persons as it deems necessary;

2. To sue and be sued in its own name;

3. To incur debts, liabilities or obligations subject to any limitations herein set forth;

4. To apply for, accept and receive State, Federal or local licenses, permits, grants, loans or other aid from any agency of the United States of America, or of the State of California necessary for the Authority's full exercise of its powers;

5. To perform all acts necessary and proper to carry out fully the purpose of this chapter and not inconsistent with Welfare and Institutions Code § 12300 et seq., or this chapter; and

6. To promote administrative efficiencies and to avoid unintended duplication of resources prior to initiating delivery of IHSS through the Authority, as described in this chapter, the County and the Authority shall enter into an agreement specifying the purposes, scope or nature of the agreement, the roles and responsibilities of each party including provisions which ensure compliance with all applicable County, State and Federal labor laws, and compliance with all statutory and regulatory provisions applicable to the delivery of IHSS.

D. Service provider employment.

1. The In-Home Supportive Services Public Authority for the County shall be deemed to be the employer of in-home supportive services personnel referred to as providers under Paragraph (3) of Subdivision (3) within the meaning of Chapter 10 (commencing with Section 3500) of Division 4 of Title 1 of the Government Code. Consumers shall retain the right to hire, fire, and supervise the work of any in-home supportive services personnel providing services to them.

2. In order to ensure the preservation of the individual provider mode and limit the liability of the Authority, the Authority shall have no authority or jurisdiction to regulate, control, or limit the rights and responsibilities of recipients of in-home supportive services to hire, fire or to supervise providers. The right to supervise includes, but is not limited to, the right to determine matters such as work schedules, tasks and duties, assignments and direction of work, methods and standards of caring and conduct, discipline, provisions for safety and security control of premises, any in-home living or other accommodations, and final resolution of concerns, problems and complaints relating to such supervision. Recipients retain such rights and responsibilities independent of the Authority, just as they held such rights and responsibilities independent of the County prior to the formation of the Authority.

E. Consumer selection of providers. Recipients of in-home supportive services may select in-home supportive services personnel who are not referred to them by the Authority. Those personnel shall nevertheless be referred to the Authority for the purposes of wages, benefits, and other terms and conditions of employment.

F. State payroll functions. The creation and operation of the In-Home Supportive Services Authority for the County shall not alter, require the alteration of, or interfere with the State payroll system and other provisions of Welfare and Institutions Code § 12302.2 for individual providers of in-home supportive services, or affect the State's responsibility with respect to unemployment insurance or worker's compensation for providers of in-home supportive services.

(Code 1997, § 8.78.060; Ord. No. 4612, 9-24-2002)

A. In-home supportive services personnel shall be entitled to all the rights conferred upon them by the Meyers, Milias, Brown Act (Government Code § 3500 et seq.), including the right to be represented in their employment relationship with the Authority by an employee organization of their choice and the right to meet and confer with the Authority with regard to wages, benefits, and other terms and conditions of employment.

B. The Authority Board shall establish rules and regulations governing the labor relations responsibilities of the Authority.

C. The Authority shall take all legal action necessary to bar any strike or concerted interruption of services to IHSS recipients.

(Code 1997, § 8.78.070; Ord. No. 4612, 9-24-2002)

A. County liability. The County shall not be liable for, and shall be immune from, any liability resulting from the implementation of Welfare and Institutions Code § 12301.6 pursuant to this chapter or any implementing agreement or through the appropriation for payment of funds to the Public Authority.

B. Public Authority liability.

1. Any obligation of the Public Authority, whether statutory, contractual, or otherwise, shall be the sole obligation of the Authority and shall not be the obligation of the County.

2. The Public Authority shall not be deemed to be an employer for the purposes of liability due to the negligence or intentional torts or any provider.

3. The Public Authority shall not be held liable for any action or omission of any provider whom the Public Authority did not list on a registry or otherwise refer to a consumer.

4. Any and all contracts, leases, or other agreements of any nature, including collective bargaining agreements, between the Authority and third parties, other than the County, shall contain an express provision advising the third party that the Authority is an independent legal entity, separate and apart from the County, and that the Authority has no power to bind the County to any contractual or legal obligations. The third party must be further advised that obligees of the Authority may not seek recourse against the County for any financial or legal obligation of the Authority.

5. The County shall be immune from any liability resulting from its implementation of Welfare and Institutions Code § 12301.6 et seq., in the administration of the in-home supportive services program. Any obligation of the Authority, whether statutory, contractual, or otherwise, shall be the obligation solely of the Authority, and shall not be the obligation of the County.

6. Without limiting its indemnification of the County, the Authority shall maintain insurance and/or bonds in an amount and kind determined to be adequate by the County's risk manager, the Authority shall name the County as additional insured on all insurance documents with the exception of workers' compensation. Evidence of such insurance shall be provided to the County's Risk Manager within 30 days of the execution of the agreement between the Authority and the County and shall be regularly provided thereafter.

7. The Authority shall indemnify, defend, and hold harmless the County and its special districts, elected and appointed officers, employees and agents from any and against any and all liability, including acts of active negligence, expense, including defense costs and legal fees, and claims for damages of any nature whatsoever, including, but not limited to, personal injury or property damage arising from, or connected with, any action or omission of any officer or employee of the Authority. The Authority shall provide an acknowledgment of such indemnification in writing to the County.

8. The Authority shall require all third parties with whom it contracts, other than the County, to indemnify the Authority, to provide the Authority with written acknowledgment of such indemnification and to maintain adequate levels of insurance naming the Authority as an additional insured.

(Code 1997, § 8.78.080; Ord. No. 4612, 9-24-2002)

A. Records. The Authority shall develop a records retention policy consistent with County, State, and Federal laws and policies. The Authority shall make any of the retained records available to all authorized County, State, and Federal representatives.

B. Annual report. The Authority shall submit annually a report to the Board of Supervisors detailing its functions and evaluating its operation of that year. In addition, such report shall present the Authority's specific goals and objectives for the coming year and its plan for meeting those goals and objectives. If, for any coming year, the Authority intends to expand its duties, the Authority shall present a detailed plan and budget for the implementation of that expansion of duties. Such plan shall be circulated to all interested County departments and community groups prior to presentation to the Board of Supervisors.

C. Cessation of Authority. By repeal of this chapter, the Board of Supervisors may abolish the Authority.

(Code 1997, § 8.78.090; Ord. No. 4612, 9-24-2002)