Monterey County Municipal Code Ch. 2.65 Monterey County in-Home Supportive Services Public Authority

The Board of Supervisors establishes a public authority, separate and apart from the County of Monterey, whose powers are derived from and consistent with the provisions of Welfare and Institutions Code Section 12301.6 and 12302.25, 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 ordinance.

(Ord. 4191, 2003)

For the purpose of this Chapter, the following words shall have the meaning respectively ascribed to them in this Section:

"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.

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

"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.

(Ord. 4191, 2003)

The Monterey County Board of Supervisors is the governing body of the Monterey County In-Home Supportive Services Public Authority.

(Ord. 4191, 2003)

A. Appointment by the Board of Supervisors. Pursuant to Welfare and Institutions Code Section 12301.3 and 12302.6, the Board of Supervisors shall appoint an Advisory Committee. Such advisory committee shall consist of eleven (11) individuals; however no fewer than fifty (50) percent of the members 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 recipients of services under Article 7 of Part 3 of Division 9 of the Welfare and Institutions Code and at least two members shall be current or former providers of in-home supportive 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 and the Board of Supervisors shall have sole authority to remove Advisory Committee members.

B. Membership. Membership on the Advisory Committee shall be as follows:

1. Each member of the Board of Supervisors shall nominate one consumer for appointment by the Board.

2. One consumer at large over the age of eighteen (18) years.

3. Two workers who provide personal assistance services to consumers.

4. One Commissioner from the Monterey County Commission on Disabilities, recommended to the Board by the Commission.

5. One Council Member from the Monterey County Area Agency on Aging Advisory Council, recommended to the Board by the Council.

6. One staff member of the Central Coast Center for Independent Living (CCCIL), recommended to the Board by the CCCIL.

C. Initial Appointments. Initial and succeeding appointments of both the consumer and worker members of the Advisory Committee shall be made from a list of recommendations based on applications submitted to the Clerk of the Board of Supervisors. Every attempt shall be made to assure that each appointee will be able to serve the full term to which he or she has been appointed, in order to ensure continuity in the work of the Advisory Committee.

D. Special Circumstances. If during his or her term as a member of the Advisory Committee, representing the Monterey County Commission on Disabilities, or Area Agency on Aging Advisory Council, or staff member of the Central Coast Center for Independent Living, no longer serves on such Commission, Council, or CCCIL, the body from which that member came shall made another recommendation for appointment to the Board of Supervisors within sixty (60) days of the end of that member's formal service on his or her respective Commission, Council, or CCCIL.

E. Reappointment. Each appointee to the Advisory Committee shall be for a three-year term. A member may be reappointed at the sole discretion of the Board of Supervisors.

F. Residency. Qualified applicants must reside in Monterey County and have familiarity with, or knowledge of, personal assistance services; the capacity to understand their role to aid and assist the Advisory Committee in its 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 sixty (60) days of being seated, the members of the Advisory Committee shall receive orientation and training regarding the functions and duties of the Authority, current issues related to delivery of IHSS, and the responsibilities of the Advisory Committee. Each subsequent new member shall receive similar orientation and training from Authority staff within sixty (60) days of appointment.

(Ord. 4191, 2003)

(Ord. No. 5168, § 1, 11-2-2010)

A. Character of the Authority. The Monterey County In-Home Support Services Public Authority shall be both of the following:

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

B. Status of Authority Employees, Providers, and Officers. Employees of the Monterey County In-Home Support Services Public Authority and its providers shall not be deemed to be employees of Monterey County for any purpose.

C. Authority Functions. The Monterey County In-Home Support Services Public Authority shall carry out the following functions:

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

2. Investigation of the qualifications and background of potential in-home supportive services personnel.

3. Establishing a referral system under which in-home supportive services personnel shall be referred to customers.

4. Developing and offering access to training opportunities for providers and consumers.

5. Performing other functions related to the delivery of in-home supportive services, including that within thirty (30) days of commencement of the operation of the Authority the governing board shall develop a written process to address consumer complaints regarding Public Authority services.

6. Ensuring 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. Adopting rules and regulations for the administration of the Authority consistent with the provisions of this Chapter.

D. Eligibility Determination for IHSS Recipients. The powers of the Public Authority shall not include responsibility for authorizing services for an IHSS recipient; determining a recipient's need for IHSS; the level and quality of services required and the eligibility of individuals to be served; conducting the initial or any subsequent assessment of the need for services; or terminating a recipient's participation in the IHSS program. The foregoing referenced services and functions shall be the exclusive responsibility of the County of Monterey.

E. Service Provider Employment Functions.

1. The Monterey County In-Home Support Services Public Authority shall be deemed to be the employer of in-home supportive services personnel refereed to consumers within the meaning of Chapter 10 (commencing with Section 3500) of Division 4 of Title I 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 resolutions 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.

F. 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.

G. State Payroll Functions. The creation and operation of the Monterey County In-Home Support Services Public Authority 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. 4191, 2003)

A. Executive Director. The Department of Social Services is delegated by the Board of Supervisors the power to appoint and/or contract for a Public Authority Director, and shall provide general supervision and policy direction to that individual. The Department of Social Services Director will solicit input from the Advisory Committee on the appointment and supervision of the Public Authority Director. The Public Authority Director shall appoint and/or contract for subordinate staff necessary for the administration and operation of the Authority, within parameters set forth by the governing body.

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 Board of Supervisors shall adopt rules and regulations for administration of employer-employee relations. The Board of Supervisors shall adopt an employer-employee relations policy relating to IHSS providers.

2. The County Administrative Officer or designee is authorized to act as manager of labor relations for the Public Authority.

3. The Authority shall establish rules and regulations respecting the labor relations responsibilities of the Authority. The Authority shall require all providers and subcontractors to 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.

6. 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 State and Federal labor laws, and compliance with all statutory and regulatory provisions applicable to the delivery of IHSS.

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 article 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 to the County has been appropriately provided for in the County's annual budget or in an amendment to such annual budget.

1. The establishment and operation of the 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.

2. Services shall not be reduced in order to fund the Authority or to provide for implementation of Government Code Section 3500 et seq., in regard to in-home supportive services personnel.

3. The Authority shall utilize all available start-up 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.

4. The Authority shall adopt its budget under the same laws, rules and policies that control the County budget process.

5. The Authority shall not spend funds or contractually or otherwise obligate funds in excess of the limits of its budget as set out in this Chapter.

(Ord. 4191, 2003)

A. County Liability. The County of Monterey shall not be liable for, and shall be immune from any liability resulting from the implementation of Welfare and Institutions Code Sections 12301.6 and 12302.25 pursuant to this Chapter or any implementing agreement or through the appropriation for payment of funds to the Authority.

B. Public Authority Liability.

1. 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 of Monterey.

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

4. Any and all contracts, leases, or other agreements or 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 a separate governmental entity and that such agreement does not bind Monterey County.

5. Insurance. 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 an 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.

6. Indemnification. 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 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.

(Ord. 4191, 2003)

A. Non-Severability. If the provisions of Section 2.65.102B, Section 2.65.104C, or Section 2.65.105, or the application of any such provision to any person or circumstance, is held invalid by a court of competent jurisdiction, each and any of said provisions shall not be deemed severable from the provisions of this Chapter establishing the Authority, and this Chapter shall be held invalid in its entirety. Except as otherwise provided in this Subsection, if any other provision of this Chapter, or the application of any such provision to any person or circumstance, shall be held invalid, the remainder of this Chapter, to the extent it can be given effect, or the application of those provisions to persons, or circumstances other than those to which it is held invalid, shall not be affected thereby, and to this end the provisions of this Chapter are severable.

B. Cessation of Authority. If this Chapter becomes invalid pursuant to the provisions of this Section, the Authority created by this Chapter shall cease to exist, and the County shall immediately resume the provision of IHSS as it was so provided prior to the adoption of this Chapter.

C. Annual Report. The Authority shall submit annually a report to the County 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 County Board of Supervisors.

(Ord. 4191, 2003; Ord. 4036, 1999)