IHSS background check

A client of mine came out of prison about a year ago and is well on her way to sobriety and rehabilitation. She currently part-time works as an assistant at a sober living house and has supplemental income from another part-time gig as a caretaker for a couple of old people as a provider of in-home supportive services (IHSS). She's not making a whole lot of money, but she can make do without any government assistance because of these part-time jobs.

She contacted me last week to ask about a letter she received from the California Department of Social Services. It's called IHSS Program Provider Enrollment Form. It asks her, among other things, about her criminal history, stating that any conviction for elder abuse, fraud against a public benefit program, and/or child abuse will disqualify her from continuing her work as an IHSS provider. This is a problematic policy, mandated by California Welfare & Institute Code § 12305.81, because it disregards the potential negation of the seeming nexus created by the above-listed crimes. More problematic is that the Form goes one step beyond what the law mandates and states, in addition, that:

If you have EVER been convicted of a felony crime OR certain serious misdemeanor crimes, you are NOT eligible to be enrolled as a provider or to receive payment from the IHSS program for providing supportive services.

I have no idea where this "no-felony" rule comes from, and I'm trying to track it down. But I have this suspicion that it's made up by the Department of Social Services. And, now that it's in their official Form, I fear that this is and will continue to be their policy. Once again, the supposed "need" for criminal background check outweighs a rational and reasonable consideration of nexus and negation.

UPDATE (10/28/2009): I can't yet disclose where, but a reliable source informed me that the State's argument appears to be that W&I 12305.81 must be construed as simply adding additional grounds for disqualification to W&I 14123, which grants the Department of Social Services (through its director) the authority to suspend payment to people convicted of felony and/or misdemeanor related to duties, functions, and qualifications of the applicable Medi-Cal program.

One of the most obvious problems with this argument is that IHSS is not Medi-Cal. In addition, the source also referred me to W&I 12301.6(e)(5)(B)(ii), which allows a recipient of either IHSS or Medi-Cal benefits to hire a person with criminal history, as long as the history doesn't include any disqualifying offense under (yes, we're now back to) W&I 12305.81.

I am sitting this one out, because I learned that it's already in the hands of a very capable attorney. Good to have good peeps.