Although Gov. Arnold Schwarzenegger has demanded that the Legislature prevent violent felons from working in the state’s home health aide program, activists say his administration’s inaction has kept vulnerable recipients from learning if their caretaker has a criminal record.
Under a law that Schwarzenegger signed more than two years ago, the 440,000 elderly, ill and disabled recipients of In-Home Supportive Services are supposed to be entitled to request free criminal background checks of the people hired to care for them in their residences. But no one is getting free records.
Local agencies charged with providing the histories say they are not doing so because the administration has yet to issue regulations implementing the law or appropriate money for the work.
“We have received no instructions from the state on how to do this,” said Karen Keeslar, executive director of the California Assn. of Public Authorities for IHSS.
The authorities are quasi-governmental agencies that manage hiring for the home care program. Under SB 692 by Sen. Roy Ashburn (R-Bakersfield), signed by the governor in 2008, they should be providing the free criminal histories on request.
“That is not happening,” Keeslar said. “We strongly support the principle of consumers having an informed choice.... [But] we can’t do this until the administration fulfills its obligations.”
She said the authorities need direction on what funds they can use to pay for the background checks, how they can provide the information to care recipients without violating privacy and employment laws meant to protect workers, and how to conduct outreach. She said only those who pay for the research are getting background information, and many people don’t even know they have the right to request it.
Department of Social Services Director John Wagner acknowledged that regulations have yet to be published, saying in an interview that they are unnecessary because reports are being provided to care recipients who ask for them. Later, however, he reversed himself and said the provision of state law through which the free criminal histories were to be provided became inoperative as a result of a conflicting statute already on the books — an interpretation that activists dispute.
Wagner said the administration has not worked more aggressively to provide criminal histories because it is focused on prohibiting felons from working in the program.
“Had we been able to roll out those changes as we intended, there would not be a need for consumers to go through the process” of requesting background checks, he said.
But a court decision undermined the department’s plans. Alameda County Superior Court Judge David Hunter ruled in March that the program’s rules allow only a narrow group of felons to be denied employment as home care workers. His decision has left scores of people convicted of such crimes as rape, murder, assault with a deadly weapon, elder abuse and child abuse in the program as care providers.
Now, administration officials say providing copies of background checks to those who ask for them does not do enough to address the problem. Existing privacy laws continue to prevent investigators who screen workers for the program from warning recipients about any information they find — and violent criminals can still get jobs as care workers.
But advocates say the administration needs to do a better job of using the tools it already has to protect people.
“If they had done what they were supposed to do, people would have access to criminal background checks,” said Deborah Doctor, legislative advocate for Disability Rights California, an advocacy group. “Now it is like a secret law.”