Alameda County Courthouse, Oakland, CA

An Alameda California Superior Court issued a temporary restraining order to stop the state’s department of social services from using new, broader requirements regarding criminal convictions and incarcerations that would disqualify individuals from working as In Home Supportive Services (IHSS) providers.

A judge ruled on November 24 that the California Department of Social Services cannot declare people ineligible to work as IHSS providers if they have been convicted of, or incarcerated for, committing:

• any felony or a serious misdemeanor
• a felony or serious misdemeanor at some point in their life

“I think that all public authorities are hoping that the narrow interpretation of convictions that disallow being a paid IHSS worker prevails,” said Donna Calame, executive director, San Francisco IHSS Public Authority. “Consumer choice of worker should be primary in who works for them.”

The current criteria disqualify individuals from being IHSS providers if they have been convicted or incarcerated for committing the following crimes within the last ten years:

• fraud against a government health care or supportive services program
• abuse of a child, elder or dependent adult

The current policy regarding conviction and incarceration is not affected by Judge Frank Roesch’s ruling which thwarts — at least temporarily — the use of the expanded regulations.

“After people have ‘paid their debt to society,’ I think that being a home care worker can be a great entry-level position when a consumer can know their history and still wants to hire them,” said Calame.

Rebeca Douglas, assistant director of registry and outreach, Personal Assistance Services Council of Los Angeles County, said, “Without the temporary restraining order, it would be hard for consumers to keep providers — especially consumers who have family members working for them or long-term relationships with their providers.”

A new mandate for fingerprinting and criminal background check requirements is still in place and also became effective November 1. The scope of what disqualifies an individual from being paid for IHSS has been narrowed by the temporary restraining order.

“Several home care registries have already been doing these procedures for years,” said Douglas.

A hearing to decide whether the new regulations will become permanent will be held on January 29, 2010. The suit was filed by Peter Sheehan of the Social Justice Law Project.