San Benito County Municipal Code Art. I In-Home Supportive Services Public Authority

Pursuant to Cal. Welfare and Institutions Code § 12302.25, the Board of Supervisors hereby establishes a Public Authority separate and apart from the County of San Benito, whose powers are derived from and consistent with the provisions of Cal. 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 article.

(1966 Code, § 5F-1) (Ord. 759, § 2)

For the purpose of this article, the following definitions apply.

AUTHORITY. The County of San Benito In-Home Supportive Services Public Authority.

AUTHORITY BOARD. The governing body of the County of San Benito In-Home Supportive Services Public Authority, which is the San Benito County Board of Supervisors.

CONSUMER. 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. The County of San Benito.

COUNTY’S RISK MANAGER. The Director of Human Resources.

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

PROVIDER. A person who provides authorized in-home supportive services to a recipient.

RECIPIENT. A person eligible and authorized to receive in-home supportive services pursuant to Cal. Welfare and Institutions Code §§ 12300 et seq.

(1966 Code, § 5F-2) (Ord. 759, § 2)

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

(1966 Code, § 5F-3) (Ord. 759, § 2)

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

(1966 Code, § 5F-4) (Ord. 759, § 2)

The San Benito County Board of Supervisors established an IHSS advisory committee in compliance with the Cal. Welfare and Institutions Code §§ 12301.3—12301.6. The IHSS Advisory Committee shall meet the following membership and responsibility requirements:

(A) Membership.

(1) The IHSS Advisory Committee shall be comprised of not more than 11 individuals. No less than 50% 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 article.

(2) Prior to the appointment of members to a committee, the county’s 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. The term of office for each member shall be for a three- year staggered term.

(B) Responsibility. The IHSS Advisory Committee shall provide ongoing advice and recommendations regarding in-home supportive services to the county’s 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, non-profit consortium, contractor and public employees.

(1966 Code, § 5F-5) (Ord. 759, § 2)

The San Benito County IHSS Public Authority shall be both of the following:

(A) An entity separate and distinct from the County of San Benito, and shall be required to file the statement required by Cal. Gov’t Code § 53051; and

(B) 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 San Benito County, including the power to contract for services pursuant to Cal. Welfare and Institutions Code §§ 12302 and 12303.

(1966 Code, § 5F-6) (Ord. 759, § 2)

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

(1966 Code, § 5F-7) (Ord. 759, § 2)

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

(A) The provision of assistance to recipients in finding in-home supportive services personnel through the establishment of a registry;

(B) The investigation of the qualifications and backgrounds of potential in-home supportive services personnel;

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

(D) The provision for training for providers and recipients; however, 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;

(E) 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;

(F) The assurance that the requirements of the personal care option pursuant to Subarticle 19, commencing with § 1396, of Chapter 7 of Title 42 of the United States Code are met;

(G) The adoption of rules and regulations for the administration of the Public Authority consistent with the provisions of this article; and

(H) The exercise of all powers, duties and functions as are prescribed by statute, ordinance of the Board of Supervisors and the Authority.

(1966 Code, § 5F-8) (Ord. 759, § 2)

The county shall retain the exclusive responsibility to determine recipient eligibility for IHSS, as set forth in the inter-agency agreement with county.

(1966 Code, § 5F-9) (Ord. 759, § 2)

(A) 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 Cal. Welfare and Institutions Code §§ 12300 et seq. and this article including the power to contract for services pursuant to Cal. Welfare and Institutions Code §§ 12302 and 12302.1, subject to any limitations set forth in this article.

(B) 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; and

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

(1966 Code, § 5F-10) (Ord. 759, § 2)

Prior to initiating delivery of IHSS through the Authority, as described in this article, the county and the Authority shall enter into an interagency agreement specifying the purpose, scope or nature of the agreement, the roles and responsibilities of each party including provisions which ensure compliance with all applicable federal, state and local laws and regulations including but not limited to all statutory and regulatory provisions applicable to the delivery of IHSS, and federal and state labor laws.

(1966 Code, § 5F-11) (Ord. 759, § 2)

(A) For the purpose of labor negotiations, wages, benefits and other terms of employment, the In-home Supportive Services Public Authority for San Benito County shall be deemed to be the employer of in-home supportive services personnel within the meaning of Cal. Gov’t Code Chapter 10 (commencing with § 3500) of Division 4 of Title I. Recipients shall retain the right to hire, fire and supervise the work of any in-home supportive services personnel providing services to them.

(B) In order to assure the preservation of the individual provider mode and limit the liability of the authority, recipients retain the right to select, terminate and supervise the work of any in-home supportive services personnel providing services to them, and 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 the supervision. Recipients retain the rights and responsibilities independent of the authority, just as they held the rights and responsibilities independent of the county prior to the formation of the authority.

(1966 Code, § 5F-12) (Ord. 759, § 2)

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. 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 recipient.

(1966 Code, § 5F-13) (Ord. 759, § 2)

The creation and operation of the In-Home Supportive Services Authority for San Benito County shall not alter, require the alteration of or interfere with the state payroll system and other provisions of Cal. 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.

(1966 Code, § 5F-14) (Ord. 759, § 2)

(A) There shall be a manager of the Public Authority who shall be appointed by and serve at the pleasure of the Public Authority Board.

(B) The Manager may hire appoint and/or contract for all other Authority employees subject to the approval of the Authority.

(C) Officers, officials, employees, agents and volunteers of the Public Authority shall not be deemed to be officers, officials, employees, agents or volunteers of the county for any purpose.

(1966 Code, § 5F-15) (Ord. 759, § 2)

(A) In-home supportive services personnel shall be entitled to all of the rights conferred upon them by the Meyers Milias-Brown Act (Cal. Gov’t 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) Subject to the provisions of division (C) of this section, the Authority Board shall establish such rules, policies and regulations for administration of employer-employee relations relating to IHSS providers.

(C) Due to the special and critical health-care services provided through the IHSS program, the San Benito County Board of Supervisors hereby finds that any interruption of the 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 the interruption and thereby protect the health and safety and to promote harmony and productive labor relations between the Public Authority and any labor organization which seeks to represent or represents IHSS providers or Public Authority personnel:

(1) The Authority shall have a non-strike clause in any and all collective bargaining agreements with IHSS providers and with 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 as it deems necessary or appropriate and are consistent with federal, state and local laws and regulations.

(2) Any collective bargaining agreement reached between the authority and any labor organization certified to represent IHSS providers shall be subject to the limitations of this article 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 votes cast in a ballot in which all providers, as defined by the Authority Board, shall be eligible to participate. Final adoption of any such agreement shall be by a simple majority vote of the Authority Board.

(1966 Code, § 5F-16) (Ord. 759, § 2)

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.

(A) 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 of the county has been appropriately provided for in the county’s annual budget or in an amendment to the annual budget.

(B) The establishment and operation of the Public Authority or application of Cal. Gov’t Code §§ 3500 et seq. shall not result in payments from the county’s general fund beyond the county’s annual appropriation for the Public Authority, if any, which shall be an absolute limit on county cost.

(C) 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 operation until the Public Authority determines that the funds necessary for the payment rate are legally available.

(D) The Authority shall not agree to, or approve, any collective bargaining or other agreement that requires an increase in wages or benefits unless there is a state or federal match for the increases.

(E) IHSS services shall not be reduced in order to fund the Public Authority or to provide for the implementation of Cal. Gov’t Code §§ 3500 et seq.

(F) The Public Authority shall utilize any and all available start-up funds and shall seek to maximize the benefit of any available new on increased non-county matching federal or state funds or other available grant or foundation funds.

(G) The Public Authority shall adopt its budget under the same laws, rules and policies that control the county budget process.

(H) 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.

(I) 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.

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

(1966 Code, § 5F-17) (Ord. 759, § 2)

(A) No county liability. The County of San Benito shall be immune from any liability resulting from the administration of the IHSS program pursuant to this article or Cal. Welfare and Institutions Code § 12301.6 and from the implementation of this article or Cal. Welfare and Institutions Code § 12301.6.

(B) Public Authority liability. 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. Any and all contracts leases, or other agreements of any nature, including collective bargaining agreements between the Public Authority and third parties other than the county shall contain an express provision advising the third party that the Public Authority is a separate governmental entity and that the agreement does not bind the county. The third party must be further advised that obliges of the authority may not seek recourse against the County of San Benito for any financial or legal obligation of the Authority.

(C) No employer liability for torts of referred personnel. The Public Authority shall not be deemed to be an employer for the purposes of liability due to the negligence or intentional acts of any IHSS provider referred to recipients pursuant to this article.

(D) No liability for acts or omissions of non-referred providers. 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 recipient.

(E) Public Authority insurance. Without limiting its indemnification of the county, the Authority shall maintain insurance in amounts and coverage determined to be adequate by the county’s Risk Manager and shall name the county, its elected and appointed officers, employees and agents as additional insureds on any policies of insurance maintained by the Public Authority. 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.

(F) Indemnification by Public Authority. The Authority shall indemnify, defend and hold harmless the county and its special districts, elected and appointed officers, employees and agents from and against any and all liability, 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 on employee of the Authority.

(G) Indemnification and insurance required of contractors. The Authority shall require all third parties with whom it contracts, other than the County of San Benito to indemnify and hold harmless the Authority, to provide the authority with written acknowledgment of such indemnification and to maintain adequate levels of insurance, as determined by the county’s Risk Manager, naming the Authority as an additional insured.

(1966 Code, § 5F-18) (Ord. 759, § 2)

If any section, division, sentence, clause or phrase of this article is for any reason held by a court of competent jurisdiction to be invalid, the decision shall not affect the validity of the remaining portion of this article. The Board of Supervisors declares that it would have passed this article and each section, division, sentence, clause or phrase thereof irrespective of the fact that any one section, division, sentence, clause or phrase be declared invalid.

(1966 Code, § 5F-19) (Ord. 759, § 2)

(A) Records retention. 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, the 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. The plan shall be circulated to all interested county departments and community groups prior to presentation to the Board of Supervisors.

(1966 Code, § 5F-20) (Ord. 759, § 2)

By repeal of this article, the Board of Supervisors may abolish the Authority.

(1966 Code, § 5F-21) (Ord. 759, § 2)