Imperial County Municipal Code Ch. 2.120 In-Home Supportive Services Public Authority

This ordinance codified in this chapter establishes the Imperial County in-home supportive services public authority as a separate and distinct legal entity.

(Ord. 1353 § 1 (part), 2002)

As required by Welfare and Institutions Code Section 12302.25, the board of supervisors hereby establishes a public authority, separate and apart from the county of Imperial, whose powers are derived from and consistent with the provisions of Welfare and Institutions Code Section 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.

(Ord. 1353, § 1 (part), 2002)

For the purposes of this chapter, the following definitions apply:

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

"Authority" means the Imperial County in-home supportive services public authority.

"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 Section 12300, et seq.

"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.

"County" means county of Imperial.

(Ord. 1353, § 1 (part), 2002)

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 Sections 12300, et seq. The public authority shall be known as the Imperial County in-home supportive services public authority and shall be referred to as the "Authority."

(Ord. 1353, § 1 (part), 2002)

Members of the public authority board shall be either appointed by the board of supervisors, as described in subsection A below, or in the alternative consist of the members of the board of supervisors, as described in subsection B below.

A. Pursuant to Welfare and Institutions Code Section 12301.6(b)(1), the board of supervisors appoints the members of the board of the public authority, and the following shall apply:

1. The governing board of the Imperial County in-home supportive services public authority shall be composed of eleven (11) members appointed by the board of supervisors. Initial appointments shall include six current members of the Imperial County in-home services advisory committee and five appointees chosen by the board of supervisors. Each board member shall appoint one person from that member's district. For subsequent appointments, the board of supervisors shall solicit recommendations for appointment of qualified members through a fair and open process, including reasonable written notice to, and affording reasonable response time from, members of the general public and interested persons and organizations. No fewer than fifty (50) percent, or six individuals, of the membership shall be individuals who are consumers. The board of supervisors shall appoint qualified individuals as members of the authority board for a term of three years and the board of supervisors shall have sole authority to remove governing body members.

2. Representative Capacity. For purposes of Government Code Section 87103 and 2 Cal. Code of Regulations 18703.3, the persons appointed to the public authority board are appointed to represent and further the interests of the specific economic interest which an individual member is appointed to represent and each such person therefore does not have financial interests in decisions of the public authority that will have a material financial effect on such person or a member of his or her immediate family, distinguishable from its effects on the public generally.

3. Reappointments and Limits on Service. After the terms of the initial period are complete, each appointment to the public authority board shall thereafter be for a three-year term. A member may be reappointed, but may not serve more than a total of nine consecutive years on the governing body. The initial appointment periods shall be staggered as follows:

a. Three members for one year terms;

b. Four members for two year terms;

c. Four members for three year terms.

Upon initial appointment, members shall draw lots to determine the length of each member's initial term.

4. Residency. Qualified appointees must reside in Imperial County and have familiarity with, or knowledge of, personal assistance services, the capacity to understand their role to aid and assist the public authority in the administration of its duties; and the ability to attend regularly scheduled meetings, which shall occur only in facilities, which meet disability access requirements. Within the first ninety (90) days of being seated, the members of the public authority board shall receive orientation and training regarding the functions and duties of the public authority, current issues related to delivery of IHSS, and the responsibilities of the authority board. Each subsequent new member shall receive similar orientation and training from authority staff within sixty (60) days of appointment.

B. Pursuant to Welfare and Institutions Code Section 12301.6(3)(A), the board of supervisors designates the members of the Imperial County board of supervisors as the governing body of the public authority, and the following shall apply:

1. Each person shall serve as a member of the governing body of the public authority so long as he or she is also a member of the Imperial County board of supervisors, said memberships to run concurrently in all respects.

2. Pursuant to Welfare and Institutions Code Section 12301.6(3)(C), the board of supervisors shall establish an advisory committee of no more than eleven (11) members, at least half of whom are current or former consumers of in home supportive services or other personal assistance services. The board of supervisors shall solicit recommendations for appointment of qualified members through a fair and open process, including reasonable written notice to, and affording reasonable response time from, members of the general public and interested persons and organizations. The board of supervisors shall appoint qualified individuals as members of the advisory committee for a term of three years.

(Ord. 1376 § 1, 2004)

A. Character of the Authority. The Imperial County IHSS public authority shall be both of the following:

1. An entity separate and distinct from the county of Imperial and shall be required to file the statement required by Government Code Section 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 Imperial County, including the power to contract for services pursuant to Welfare and Institutions Code Sections 12302 and 12303.3.

B. Status of Authority Employees, Providers, and Officers. Employees of the Imperial County in-home supportive services public authority, providers, and members of the authority board, shall not be deemed to be employees of the county of Imperial for any purpose.

C. Public Authority Functions. The Imperial County IHSS public authority shall carry out the following functions to implement the goals and objectives of Welfare and Institutions Code Section 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;

5. The performance of any other functions related to the delivery of in-home supportive services including that within thirty (30) days of commencement of the operation of the public authority, the governing board 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; and

8. The exercise of all powers, duties and functions as are prescribed by statute and ordinance of the board of supervisors and the authority.

D. Exclusion of Functions.

1. 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.

2. The authority shall not be responsible for authorizing services for an IHSS recipient;

3. 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.

4. The authority shall not be responsible for conducting the initial or any subsequent assessment of need for services.

5. The authority shall not be responsible for terminating the recipient's participation in the IHSS program. The above-referenced services and functions shall be the exclusive responsibility of the county of Imperial.

(Ord. 1353, § 1 (part), 2002)

A. The authority shall be an entity separate from the county of Imperial and shall file the statement of fact for the roster of public agencies required by Government Code Section 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 Sections 12300 et seq. and this ordinance, including the power to contract for services pursuant to Welfare and Institutions Code Sections 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 Sections 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 herein, 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 Imperial County shall be deemed to be the employer of in-home supportive services personnel referred to as consumers under paragraph (3) of subdivision (d) 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 assure 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 Imperial County shall not alter, require the alteration of, or interfere with the state payroll system and other provisions of Welfare and Institutions Code Section 12302.2 for individual providers of in-home supportive services, or affect the state's responsibility with respect to unemployment insurance or workers' compensation for providers of in-home supportive services.

(Ord. 1353, § 1 (part), 2002)

A. Executive Director. The executive director of the Imperial County in-home supportive services public authority shall be appointed by the authority board. The executive director may hire staff if such authority is provided in the authority's adopted rules and regulations.

B. Labor Relations. Due to the special and critical health-care services provided through the IHSS program, the board of supervisors finds that any interruption of such services would pose an imminent threat to the health and safety of the recipients of IHSS services and to the community. In order to minimize the likelihood of such interruption, and thereby protect the health and safety of recipients, and to promote harmony and productive labor relations between the authority and any labor organization which seeks to represent or represents the providers of services to recipients of IHSS services:

1. The authority board shall establish rules and regulations respecting the labor relations responsibilities of the authority and such rules shall provide that a showing of interest of at least twenty percent (20%) of the eligible providers shall be a sufficient showing of interest for any labor organization to initiate any election or representation procedures established by the authority for the purposes of certifying an exclusive representative for purposes of collective bargaining.

2. Any collective bargaining agreement reached between the authority and any labor organization certified to represent providers of IHSS services shall be subjected to the limitations herein, and to ratification in its entirety (i.e., all provisions of such agreements shall be subject to the same vote) by a simple majority of the vote cast in a ballot in which all providers of IHSS services, as recognized by the authority, shall be eligible to participate. Final adoption of any such agreement shall be by a simple majority vote of the authority.

3. The authority shall have a non-strike clause in any and all collective bargaining agreements with providers and personnel of the authority. The non-strike clause shall continue at least one year beyond the other provisions of any and all collective bargaining agreements.

4. The authority shall take all legal action necessary to bar any strike or other concerted interruption of services to IHSS recipients.

5. In-home supportive services personnel shall be entitled to all of the rights conferred upon them by the Meyers-Milias-Brown Act (Government Code Section 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.

C. Fiscal Provisions. In establishing the authority, the board of supervisors recognizes that the funding of IHSS is the product of a complex relationship of federal, state and county financing, and that the ability of the authority to operate and to negotiate the wages and benefits of the providers of IHSS is contingent upon the availability of adequate funding. Nothing in this chapter is intended to require the county to appropriate or to transfer any funds for the operation of the authority or for the payment of wages or benefits for in-home supportive services personnel, except as expressly provided in an agreement between the authority and the county, and the funds necessary to fund any obligation of the county has been appropriately provided for in the county's annual budget or in an amendment to such annual budget.

1. The total of all administrative costs, wages, and benefits proposed or established by the authority shall be consistent with the provisions of the county budget and shall not provide for any payments promulgated or calculated from or based on contributions or payments from the county in excess of the amounts expressly provided for in the county's annual budget or the county's annual budget as it may be amended from time to time. The authority shall not establish a payment rate, including costs of wages, benefits, and operations until the public authority determines that the funds necessary for the payment rate are legally available.

2. The establishment and operation of the public authority or application of Government Code Section 3500 et seq. shall not result in payments from the county's general fund beyond the amounts provided for in the county's annual budget, as amended from time to time.

3. Services shall not be reduced in order to fund the public authority or to provide for the implementation of Government Code Section 3500 et seq. in regard to IHSS personnel.

4. The public authority shall utilize all available startup funds pursuant to Welfare and Institutions Code Section 14132.95 and shall seek to maximize the benefit of any available new or increased non-county matching federal or state funds or other available grant or foundation funds.

5. The public authority shall adopt its budget under the same laws, rules, and policies that control the county budget process.

6. The authority shall provide the county with the expenditure information necessary for the county to report to the California Department of Social Services in order to receive reimbursement for the state and federal share of the authority costs.

7. The authority shall assist the county in developing and submitting the information and documentation necessary to obtain approval from the California Department of Social Services and the Department of Health Services for the authority's reimbursement rate and any rate adjustment.

8. Payment for all services provided pursuant to this chapter is contingent upon the appropriation of county, state and federal funds for the purpose of providing IHSS.

(Ord. 1353, § 1 (part), 2002)

A. County Liability. The county of Imperial shall not be liable for, and shall be immune from, any liability resulting from the implementation of Welfare and Institutions Code Section 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 of Imperial.

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

3. The public authority shall not be held liable for any act 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 of Imperial, 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 of Imperial for any financial or legal obligation of the authority.

5. The county of Imperial shall be immune from any liability resulting from its implementation of Welfare and Institutions Code Sections 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 in an amount determined to be adequate by the county's risk manager and shall name the county as additional insured. Evidence of such insurance shall be provided to the county's risk manager within thirty (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 of Imperial, 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.

(Ord. 1353, § 1 (part), 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.

D. Severability. If any section, sub-section, sentence, clause or phrase of this ordinance is for any reason held to be unconstitutional and invalid, such decision shall not affect the validity of the remaining portion of this chapter.

(Ord. 1353, § 1 (part), 2002)