Public Authority for In-Home Supportive Services in Yolo County

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ORDINANCE NO. ______

(An Ordinance Adding Article 35 to Chapter 2 of Title 2 of the Yolo County Code, to Create the Yolo County In-Home Supportive Services Public Authority)

The Board of Supervisors of the County of Yolo ordains as follows:

SECTION 1. Article 35 is hereby added to Chapter 2 of Title 2 of the Yolo County Code to read as follows:

ARTICLE 35.

YOLO COUNTY IN-HOME SUPPORTIVE SERVICES PUBLIC AUTHORITY

Section 2-2.3501. Yolo County In-Home Supportive Services Public Authority Created; Separate Entity.

(a) Pursuant to Welfare and Institutions Code Section 12301.6, there is hereby created the Yolo County In-Home Supportive Services Public Authority.

(b) The Yolo County In-Home Supportive Services Public Authority shall be a public entity separate from the County of Yolo, and shall file the statements required by Government Code Section 53051.

Section 2-2.3502. Definitions.

(a) IHSS means in-home supportive services as described in Welfare and Institutions Code Section 12300 et seq.

(b) In-home supportive services personnel and provider mean a person who provides in-home supportive services to one or more recipients.

(c) Public Authority means the Yolo County In-Home Supportive Services Public Authority.

(d) Recipient means a person eligible and authorized to receive in-home supportive services under Welfare and Institutions Code Section 12300 et seq.

(e) County means the County of Yolo.

Section 2-2.3503. Purpose.

The purpose of the Public Authority is to provide for the delivery of in-home supportive services to qualified residents of the County, subject to all applicable Federal and State laws and regulations, and to the provisions of this Article.

Section 2-2.3504. Governing Board: Board of Supervisors.

The governing body of the Public Authority is the Yolo County Board of Supervisors (hereinafter the "Public Authority Board").

Section 2-2.3505. Public Authority Board Powers.

The Public Authority shall be a corporate public body, exercising public and essential governmental functions, and, subject to the provisions set forth in this Article, shall have all the powers necessary or convenient to carry out the delivery of in-home supportive services in the County, including but not limited to the power to contract for services pursuant to Welfare and Institutions Code Sections 12302 and 12302.1, and to make or provide for direct payment to a provider chosen by the recipient pursuant to Welfare and Institutions Code Sections 12302 and 12302.2.

Section 2-2.3506. Public Authority Duties and Responsibilities.

The Public Authority shall have the following duties and responsibilities:

(a) Provide assistance to recipients in finding in-home supportive services personnel through the establishment of a registry.

(b) Investigate the qualifications and background of potential in-home supportive services personnel.

(c) Establish a referral system under which in-home supportive services personnel shall be referred to recipients.

(d) Provide for training for providers and recipients; provided, however, that the Public Authority shall not be obligated to provide training directly, to pay for training provided privately or in the community, to pay providers for the 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 Public Authority also shall not be obligated to screen or be responsible for the content of any training it informs providers or recipients is available in the community (i.e., not provided directly by the Public Authority), or to ensure that any provider or recipient attend or complete any training.

(e) Ensure 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.

(f) Develop written procedures to address consumer and consumer representative complaints related to a provider=s delivery of in-home supportive services.

(g) Adopt rules and regulations for the administration of the Public Authority consistent with the provisions of this Article.

(h) Perform other functions related to the delivery of in-home supportive services as may hereafter be prescribed by law.

Section 2-2.3507. Public Authority: Administration.

There shall be an executive director of the Public Authority, who shall be appointed by and serve at the pleasure of the Public Authority Board. The Public Authority Board shall provide for the appointment of all other Public Authority employees, and may provide that it shall make any such appointments, or may delegate that authority to the executive director. 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.

Section 2-2.3508. Public Authority Board: Advisory Committee.

(a) The Board of Supervisors shall appoint an advisory committee for the Public Authority, which shall consist of eleven (11) individuals, no fewer than fifty percent (50%) of whom 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.

(b) The Yolo County IHSS Advisory Committee shall serve as the advisory committee described in subsection (a) of this section.

Section 2-2.3509. Public Authority: Employment Functions.

(a) The Public Authority shall be deemed to be the employer, within the meaning of Chapter 10 (commencing with Section 3500) of Division 4 of Title 1 of the Government Code, of in-home supportive services personnel referred to recipients by the Public Authority. The Public Authority shall preserve the individual provider mode of service for recipients of IHSS and shall ensure that recipients retain the unconditional and exclusive right to hire, fire and supervise the work of their providers. In no event shall in-home supportive services personnel be deemed to be employees of the County for any purpose.

(b) Recipients shall retain the right to select, terminate, and direct the work of any in-home supportive services personnel providing services to them. In addition, the Public Authority shall have no authority or jurisdiction to regulate, control, or limit the rights and responsibilities of recipients of in-home supportive services to recruit, hire, fire or supervise providers. The right to supervise includes, but is not limited to, the right to determine matters such as work schedules, tasks and duties, assignment and direction of work, methods and standards of care and conduct, discipline, provision 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 Public Authority, just as they held such rights and responsibilities independent of the County prior to the formation of the Public Authority.

Section 2-2.3510. State’s Responsibilities.

The creation and operation of the Public Authority shall not affect the State’s responsibilities with respect to the State payroll system, unemployment insurance, or workers= compensation and other provisions of Welfare and Institutions Code Section 12302.2 for individual providers of in-home supportive services.

Section 2-2.3511. County Responsibilities.

The County shall retain the responsibility to determine recipient eligibility for IHSS and to determine the number of hours of service each eligible recipient may receive.

Section 2-2.3512. Recipient Selection.

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

Section 2-2.3513. Public Authority: Labor Relations.

(a) Subject to the provisions of subsection (b) of this section, the Public Authority Board shall adopt such personnel and labor relations rules and regulations as it deems necessary or appropriate and are consistent with Federal, State and local laws and regulations.

(b) Due to the special and critical health-care services provided through the IHSS program, the Yolo County Board of Supervisors hereby 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 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 Public Authority shall have a non-strike clause in any and all collective bargaining agreements with IHSS providers and with personnel of the Public Authority. The non-strike clause shall continue at least one year beyond the other provisions of any and all collective bargaining agreements.

(2) Any collective bargaining agreement reached between the Public 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 Public Authority Board, shall be eligible to participate. Final adoption of any such agreement shall be by a simple majority vote of the Public Authority Board.

Section 2-2.3514. County Costs.

The costs and expenses of the County to provide administrative, legal, labor relations, and other services requested by the Public Authority and agreed to by the County, and to make payments to or provide benefits for in-home supportive services providers, shall be charged against the funds of the Public Authority.

Section 2-2.3515. Public Authority-County Agreement.

Prior to initiating delivery of IHSS through the Public Authority, the Public Authority shall enter into an agreement with the County specifying the roles and responsibilities of each party, provide for the County=s provision of such administrative, legal, labor relations, and other services to the Public Authority as the parties may deem necessary or appropriate, and 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.

Section 2-2.3516. Fiscal Provisions.

(a) IHSS services shall not be reduced in order to fund the Public Authority or implementation of Government Code Sections 3500 et seq.

(b) To ensure that the Public Authority=s budget procedures and adoption are compatible with the County=s budget, the Public Authority Board shall adopt its budget under the same procedural laws, rules and policies that control the County budget process.

(c) The Public Authority Board 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 such increases.

(d) The establishment and operation of the Public Authority or the application of Government Code Sections 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.

(e) The maximum amount of County funds available in any given budget year for the Public Authority=s wage and benefit negotiations, if any, shall be set by the Board of Supervisors as part of the County=s annual budget as it may be amended from time to time. While the establishment of this figure shall not obligate the County, it shall serve as the absolute limit to County costs for any increases negotiated in collective bargaining taking place that fiscal year. The absolute cap on annual County spending on wage or benefits increases shall not be affected by any potential changes in State or Federal reimbursement rates.

(f) The total of all operating costs, wages, and benefits proposed or established by the Public Authority Board shall be consistent with the provisions of the County budget. The Public Authority Board shall not establish a payment rate, including costs of wages, benefits and operation, until the Public Authority Board determines that the funds necessary for the payment rate are legally available. The annual appropriation for the Public Authority, if any, contained in the County=s fiscal budget for any fiscal year shall be an absolute limit on County cost for that fiscal year.

Section 2-2.3517. Limitations of Public Authority Liability.

(a) The Public Authority shall not be deemed to be the employer of in-home supportive services personnel referred to recipients for purposes of liability due to the negligence or intentional torts of the in-home supportive services personnel.

(b) The Public Authority shall not be held liable for any action or omission of any in-home supportive services personnel whom the Public Authority did not list on a registry or otherwise refer to a recipient.

Section 2-2.3518. Limitations of County Liability.

(a) The County shall be immune from any liability resulting from the implementation of this Article or Welfare and Institutions Code Section 12301.6.

(b) The County shall be immune from any liability resulting from the administration of the IHSS program pursuant to this Article or Welfare and Institutions Code Section 12301.6.

(c) Any obligation of the Public Authority, whether statutory, contractual, or otherwise, shall be the obligation solely of the Public 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 such agreement does not bind the County.

Section 2-2.3519. Liability Insurance.

Without limiting the Public Authority=s indemnification of the County as set forth below, the Public Authority shall acquire and maintain appropriate insurance in amounts and coverage as are determined by the County=s Risk Manager to be adequate, 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 thirty days of procurement.

Section 2-2.3520. Indemnification.

The Public Authority shall indemnify, defend and hold harmless the County, its 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 damages, arising from or connected with any act or omission of any officer or personnel of the Public Authority.

Section 2-2.3521. Severability.

If any provision of this Article, or the application of such provision to any person or circumstance, is held invalid, the remaining provisions of this Article shall be deemed severable from the invalid provision and shall remain in full force and effect.

Section 2-2.3522. Termination: Review.

No later than February 1, 2004, the Board of Supervisors shall review the provisions of this Article, including but not limited to the creation of an independent public authority for the purposes of determining whether to provide for the appointment of an independent governing board for the Public Authority, or whether to otherwise modify or repeal the provisions of this Article, and to take such other actions as the Board of Supervisors may deem appropriate.

SECTION 2. EFFECTIVE DATE/PUBLICATION. This Ordinance shall take effect and be in force thirty (30) days following its adoption and, prior to the expiration of fifteen (15) days after its adoption, it shall be published once in _____________, a newspaper of general circulation, printed and published in the County of Yolo.

PASSED AND ADOPTED by the Board of Supervisors of the County of Yolo this ___ day of _______, 2001, by the following vote:

AYES:
NOES:
ABSENT:
ABSTAIN:
____________________________________
TOM STALLARD, CHAIR
BOARD OF SUPERVISORS
COUNTY OF YOLO, STATE OF CALIFORNIA
ATTEST:

PATTY CRITTENDEN, CLERK     APPROVED AS TO FORM:
BOARD OF SUPERVISORS
STEVEN M. BASHA, COUNTY COUNSEL
By__________________________
DEPUTY By___________________________________
(SEAL) STEPHEN B. NOCITA, SENIOR DEPUTY