Public Hearing and Meeting

April 24, 2003

State Capitol

Assembly Room 447

Sacramento, California



Industrial Welfare Commission


DOUG BOSCO (by telephone)


LESLEE COLEMAN (by telephone)



BRIDGET BANE, Executive Officer



CYNTHIA JUDY, Hearing Reporter


Proceedings 4

Public Hearing - Amendments to Wage Order 5 4

PETER COOPER, California Labor Federation 4

LISA CHIN, Service Employees International Union 9

SHAWN ROLAND, Service Employees Internationa Unionl 12

FROND GELÉE HAUSEY, Association of California Care Operators 21

WARDELL JACKSON, Association of California Care Operators 25

SISTER MARY ANN LEYBA, East Bay Services for the Developmentally Disabled 26

CHAIRLEAN HAMPTON, care provider 31

WARDELL JACKSON, Association of California Care Operator 33

BARBARA MAIZIE, Contra Costa ARC, The Respite Inn 38

Public Meeting 55

Amendments to Wage Order 5 56

New Business 67

Adjournment 68

Certificate of Reporter/Transcriber 69



(Time noted: 10:20 a.m.)

COMMISSIONER DOMBROWSKI: All right. I'm going to call the public hearing to order. This is to have comment on the proposed amendments to Wage Order 5-2001, Section 3, "Hours and Days of Work," regarding exemption for employees with direct responsibility for the elderly and adults with disabilities.

I have a list of six speakers at this point. I don't know if you want to come up as a panel or if you want to come up separately, whichever you prefer.

I've got Peter Cooper, Lisa Chin, Shawn Roland.

MR. COOPER: Thank you, commissioner.

COMMISSIONER DOMBROWSKI: Before that, for the record, I'll just add that we have Commissioners Cremins, Rose, and Dombrowski present, and we'll be looping in Commissioners Bosco and Coleman by phone at some point.

Thank you.

MR. COOPER: Peter Cooper, California Labor Federation.

I just have a few points to make, and then I will pass it off to the other representatives I have with me.

There's a great deal of unclarity about the impact of the proposed change to Wage Order 5. I feel there is insufficient data that show the need for the change due to difficulties in the industry, nor is there sufficient information on the impact the change will have on workers.

SEIU did provide estimates showing that the number of beds has actually increased over the past five years and that in the neighborhood of 55,000 workers could be impacted by this change. Lisa Chin and Shawn Roland of SEIU will address some of these issues more specifically. But I believe there are still many questions outstanding.

The Commission should not take any action on this wage order today, but should gather more data so that an informed decision can be made, to go into effect on January 1st of 2004.

Additionally, I have concerns about the long-term solutions and the road along -- the discussions about long-term solutions to the industry problems. If the IWC acts quickly today, this does nothing for structural changes that are needed to fix the industry. And a quick fix today will take away wages from thousands of workers. How can you ask them to sacrifice if there is no assurance that many problems with the industry will be addressed in a comprehensive manner?

And just two other points I wanted to make. First, I have some questions about the manner in which the meeting which is to precede (sic) this is going to take place. It's my understanding that such meetings are for the public. And to have votes taken via telephone I believe to be inappropriate. I have some questions that I think the IWC should address regarding whether the commissioners that will be voting via telephone, whether their locations are open to the public so that workers that are concerned about these issues are able to be with those commissioners when they cast their votes on this important issue. So, I believe those issues need to be addressed before a vote takes place.

And lastly, I just want to come back to what I believe is the purpose of the IWC, which is to protect the workers in this state, and not the employers and not the industry. I believe the charge of the IWC is to look at the impact of changes in state law on workers. And I urge you to delay action on this issue today, not to take action, but to look at this issue more closely because of its unknown and potentially huge impact on the lives of workers in this state.

With that, I want to turn it over to --


Bridget, could you refresh our memories on the timeline that we're trying to follow on this thing?

MS. BANE: The timeline would require publication of the new amendment by Wednesday of next week. And we would be able to, with notice to the public -- the publishing newspapers, we'd be able to do that by giving them notice on Monday.

And, Doug, is it -- when -- do we have till Thursday or is it Wednesday, the absolute cutoff?

MR. McCONKIE: The publication date could be no later -- the publication date could be no later than June (sic) 30th to be -- meet the 60-day requirement for an effective date of July 1 --


MR. McCONKIE: -- for an effective date.

MS. BANE: April 30th?

MR. McCONKIE: April 30th.

MS. BANE: And that's Wednesday.

COMMISSIONER DOMBROWSKI: And then, second, regarding your question on the location of the commissioners, I've participated in other commissions -- I am a member of other commissions, including the Tax Policy and New Economy Commission, and we have -- it is subject to the same regulations, Brown Act regulations, as the IWC. And we have received legal advice from counsel for that commission that it is permissible to have some commissioners participate by phone, as long as there is a physical location where the meeting is taking place.

So, I don't know if you've done any other --

MS. BANE: Yes.

COMMISSIONER DOMBROWSKI: -- research on it, but that --

MS. BANE: Today I did. Marguerite Stricklin is the deputy attorney general who is assigned to this Commission to give legal advice. She is available to us by phone. Unfortunately, what has happened is that some participants have been stopped by accidents and traffic, and Marguerite is one of them. She was headed here, but she couldn't get here on time.

And, however, I did call her so that we could get the specific legal code reference. And the legal code reference where the language appears that allows telecommunication, teleconference, telephones, video hookups for state bodies is Government Code 111.23. And it is as Commissioner Dombrowski has outlined. As long as there is a public place like this where the public can come in, and the presence of at least one of the members of the state body, then others can participate by teleconference.

COMMISSIONER CREMINS: Just to avoid any future confrontations or lawsuits, perhaps, will you supply them with that code section when you get a chance?

MS. BANE: Yes. We will be in communication.

And, for the record, right at this moment, Commissioner Leslee Coleman is on this line. We are trying to patch it in on the land line. But Commissioner Coleman can hear and be heard.

If you would like to be heard, Commissioner Coleman -- are you there?


COMMISSIONER DOMBROWSKI: Do you have Commissioner Bosco on the other line?

MS. BANE: We can get Commissioner Bosco on the other line while we're waiting for someone who knows how to teleconference both, conference with both.

Get Bosco on the line, please.

COMMISSIONER DOMBROWSKI: I apologize. I had no idea until this morning this was going to be happening, so I apologize.

Go ahead. I'm sorry.

MS. CHIN: Would you like me to wait?


MS. CHIN: Lisa Chin, with the Service Employees International Union, California State Council.

First, I wanted to respond to -- at the San Francisco hearing, Commissioner Coleman had asked questions about the number of facilities.

COMMISSIONER ROSE: Use the microphone.

MS. CHIN: Oh. I thought I was.

Hello? Okay. Commissioner Coleman had asked me about the number of facilities pre-reinstatement of the 8-hour workday and post-reinstatement of the 8-hour workday. And the total number of facilities in January, 1998, was 11,270. In January, 2001 --


MS. CHIN: January, 1998.

In January, 2001, we found 11,597 facilities with 215,146 beds.

COMMISSIONER DOMBROWSKI: You're going -- eleven thousand -- how many? Eleven thousand what?

MS. CHIN: I have a copy for you.


MS. CHIN: Yeah.

(Ms. Chin hands document to commissioners.)

COMMISSIONER DOMBROWSKI: Or did you already -- I'm sorry.

MS. CHIN: Okay. In January, 2001, we found 11,597 facilities with 215,146 beds. And in February, 2003, we found 11,992 facilities with 225,994 beds. So the number of beds has actually gone up since '98.

MS. BANE: Do you have other copies of that?

COMMISSIONER DOMBROWSKI: I'll give you mine for the file when we're done.

MS. BANE: Okay. All right.

You just brought those numbers in today, Lisa?

MS. CHIN: Yeah. I brought them in.

MS. BANE: Thanks.

MS. CHIN: Leslee Coleman had asked for them in San Francisco.

MS. BANE: Okay.

MS. CHIN: I also kind of did a breakdown looking at the adult residential facilities, which covers mental health, developmental disability, and elderly homes -- no, I'm sorry -- mental health and developmental disability. In '98, there were 4,663 facilities; in January, 2001, 4,647 facilities, with 38,438 beds; and in February, 2003, 4,835 facilities, with 39,735 beds. So it leveled -- the number of facilities went down a bit, but then went back up by current year.

MS. BANE: What's the source of these numbers?

MS. CHIN: Department of Social Services, Community Care Licensing.

And looking at social rehabilitation facilities, in January, '98, there were 72. In January, 2001, there were 70, with 891 beds. And in February, 2003, there are 73, with 947 beds.

COMMISSIONER DOMBROWSKI: What's included in social rehabilitation facilities? What's it -- how do you define that?

MS. CHIN: Those are a type of facility. Shawn Roland is here, with SEIU, and she can further elaborate.


MS. ROLAND: The social rehab facilities' focus is on helping to rehab people so they can be sort of more able to live independently, so they focus on skills of budgeting and things like that. So it's just a specific type of facility. And some number of years ago, about ten years ago, they created that option because there was a lot of MediCal requirements and a lot of things that really inhibited the ability to focus on skill-building. For example, in some community care licenses, the people who live there are not allowed to cook because they don't want them to be abused, which doesn't really help people to learn how to cook and be more independent. So social rehab was created so that people would be able to learn how to cook and things like that. So it's just a different kind of license.

COMMISSIONER DOMBROWSKI: So, in my simple mind, the difference could be that an adult residential is somewhat of a permanent situation?

MS. ROLAND: It's not as much whether it's permanent or temporary. I mean, basically, in the ideal world, people would be allowed to cook for themselves and be able to learn independent living skills. But, for whatever reason, community care licensing precludes that. And so this was something that was created sort of in a movement to help people live more independently and learn skills.

COMMISSIONER DOMBROWSKI: Okay. This is not mental health?

MS. ROLAND: I'm talking about a mental health. My expertise -- let me introduce myself -- that would probably help. I work for SEIU. I'm a licensed clinical social worker, and I worked in mental health for fifteen years before I started working for SEIU about a year ago. So my expertise is mental health, and so I can only answer questions that are related to that.

MS. CHIN: And so, I submitted testimony, written testimony, in San Francisco last week, and I was assured that every commissioner would receive a copy of it. I'd like to just kind of go through the points and not review the entirety of the testimony.

We researched all the proposals and provided all the numbers of what we assessed each proposal would impact in terms of average estimated number of workers, the number of facilities.

The first point was about the 6-bed facility. I just wanted to reiterate that we feel that the most compelling testimony came from the small, owner-operated group homes, you know, with 6 beds or less. These are the mom-and-pop facilities that we feel, you know, do deserve some type of relief, some type of short-term relief while we're trying to figure out a long-term solution to provide some relief for the industry in terms of the budget.

The other issue is whether or not to extend the overtime exemption to cover mental health. And upon doing more research on different types of mental health facilities, we're still opposed to expansion into the mental health universe. We found there -- in terms of the 6-beds or less universe, mental health facilities licensed by Department of Social Services, there are about 659 6 beds or less. The petitioners had said there were 73. Perhaps that reflects just the social rehabilitation facilities.

But we'd also be opposed to expansion to social rehabilitation facilities because the universe -- there's a huge gamut of the type of facilities that would be covered. For example, SEIU represents an employer in San Francisco that's a multi-million-dollar nonprofit corporation that runs social rehabilitation licensed 6 beds and under facilities, quite a different picture from a small mom-and-pop owner, you know, going to get a license --

COMMISSIONER DOMBROWSKI: Is that one of these 73, with the 947 beds?

MS. CHIN: Yes.

COMMISSIONER DOMBROWSKI: And then how many beds does that operator control?

MS. ROLAND: Actually, we don't know exactly how many beds. But I sort of want to sort of paint a picture for you as far as the difference. Having worked in the field, the kind of facilities, I understand, have been testified around are what we call mental health board-and-care homes. So they're homes where people live, and their

-- their basic needs are taken care of and they, you know, offer the kind of treatment, and that typically the people you deal with are mom-and-pops, that they have this, this is their business and they take care of, you know, of six clients, which is high contrast to Progress Foundation in San Francisco that is about a $10-million budget, has many, many different homes, some in Pacific Heights, all kinds of different homes, that do -- so it's a big business. You know, it is a nonprofit, but it's just very, very different. And they see --

COMMISSIONER DOMBROWSKI: Well, I mean, there's only 947 total beds. So how many of those do they control, do you think?

MS. ROLAND: I believe they hold 15 community care licenses, for -- I think some are 6 and some are 15. So -- I don't know -- they have 100 workers who are in the bargaining unit. So, I don't know, I -- I guess you need to have that information today, but I would guess there's probably 40 to 60 clients, or 40 to 60 beds.

COMMISSIONER DOMBROWSKI: And they'd be spread around.

MS. ROLAND: Yeah. There's lots of different homes. Part of the movement is to have people live in communities, so they have homes all over San Francisco and also in Napa.

And they have had no problem paying overtime. Sort of -- I guess the -- and what we're trying to sort of communicate is that when you have a small business, that you really struggle from month to month. And the mom-and-pops are struggling. But people who run these bigger facilities manage to survive financially, pay overtime, and it's just a whole different category, and that --

COMMISSIONER DOMBROWSKI: I understand. I understand.


COMMISSIONER DOMBROWSKI: I'm just -- from my personal perspective, I'm trying to get a sense of -- I mean, you can't -- there may not be a way to draw a perfect line here.

MS. ROLAND: Um-hmm.

COMMISSIONER DOMBROWSKI: And I don't want to throw out the mom-and-pops because there's one or two big operators who might get a break because of this --

MS. ROLAND: Um-hmm.

COMMISSIONER DOMBROWSKI: -- particularly since there's a two-year sunset on this thing, and I'm --

MS. ROLAND: Um-hmm.

COMMISSIONER DOMBROWSKI: -- hoping that in that two-year period, this gets sorted out. So I'm trying to err on the side of not having, frankly, patients being thrown out on the streets --

MS. ROLAND: Um-hmm.

COMMISSIONER DOMBROWSKI: -- or businesses shutting down --

MS. ROLAND: Right.

COMMISSIONER DOMBROWSKI: -- just because of some action we did. That's all.

MS. ROLAND: Yeah, that makes sense. And as Lisa pointed out, actually the industry is growing, not shrinking. It sort of suggests that people being thrown out on the street -- the worst-case scenario, somebody might go out of business, and this new facility that is -- you know, exists, the person would move. So it's not ideal for clients to move, but as far as people going out on the street, based on the industry growing as Lisa pointed out, that doesn't seem like a realistic concern.

The other issue I just want to bring up --

COMMISSIONER DOMBROWSKI: What kind of -- is it -- I think there's been testimony relative to the trauma of relocation. Is that -- how big of a problem is that, from your perspective?

MS. ROLAND: We're talking about adults. And unfortunately, in the system, people move for a lot of different reasons. People with mental illness can be very difficult to work with in a home, or you can have some -- you know, two people that don't get along. So, movement, regardless of the issues we're discussing today, is very, very common. So it's unfortunate, but people have just moved so much in their lives. Most of the clients I've worked with -- I work with any given client for a year -- they're probably in two to three different homes. So it's

-- it's a concern.

And the other thing I just want to bring up as far as the mom-and-pops, because clearly, from what I understand of the testimony, that's really what we're trying to protect, and the thing that gets confusing is that it looks like if you have like a 6-bed facility and you have a license for 6 beds, that that's a mom-and-pop. The problem is what it doesn't really look at is the fact that one person can have six 6-bed facilities or ten 6-bed facilities. And so I think that, in protecting mom-and-pops, it is, like you said. It's very difficult to draw the line because of people holding multiple licenses.

COMMISSIONER CREMINS: A general question. Why are we doing this by license as opposed to be individual holding the license? Is that for consistency within the wage order? Is that --

MS. BANE: I don't know that we know the rationale for doing this by licensing. I think that it probably is one of the only ways to isolate these.

COMMISSIONER DOMBROWSKI: I think, if we could wait -- I don't know who -- the operators could probably answer why they're -- how that operates or how that --

COMMISSIONER CREMINS: If we're truly trying to draw a line between the mom-and-pops and the multiple license holders or the larger employers, I mean, I think it makes more sense. And I don't -- I'm not sure of our rationale here.

COMMISSIONER DOMBROWSKI: It's not our rationale. I think it's the rationale of whoever regulates them. And I don't know if there's anything we can actually do about that.

MS. CHIN: Yeah. I don't have an answer either. But, you know, just in terms of, you know, the debate over 6 beds or less or 15 beds or less, that is the licensure categories that, you know, you can look at the database and see how many fall under each category.


MS. ROLAND: In the community care licensing database, you can look at who the owner is and how many licenses they hold. So, as far as like database, it's a little bit harder, but it's definitely something that, given the data that community care licensing provides, that you could separate out if you had one owner with -- who holds one license as opposed to one owner who holds more than one license.


MS. CHIN: No. I'd just like to close, if there are any questions. I feel like I gave most of the testimony at the San Francisco venue.


MS. CHIN: Okay.

COMMISSIONER DOMBROWSKI: I have Wardell Jackson, Sister Mary Ann Leyba, and Frond Gelée Hausey. And I don't know if others want to come up and testify.

MS. BANE: Mr. Chairman, I believe that we have both commissioners on the phone right now, and I would like for each of them to identify themselves and let us know that they can hear what's going on.

Commissioner Bosco?

COMMISSIONER BOSCO: Yes, I'm here and I can hear what's going on.

MS. BANE: And Commissioner Coleman?

COMMISSIONER COLEMAN: Yes. I'm here and I can also hear. Thank you.

MS. BANE: Thank you very much.

And, of course, if you have comments, I'm sure the chair will entertain them.

COMMISSIONER DOMBROWSKI: Do they know the status, where we're at?

MS. BANE: We have started the public hearing, and a panel has come forward to speak opposing some of the elements of the amendment. I think you could hear the fact that the conversation is something you've heard about before, whether or not 6 beds or more than 6 beds should be included in the amendment, and whether mental health facilities should be included in the amendment.


MS. HAUSEY: Okay. Good morning, members. My name is Frond Hausey -- it's Gelée Hausey, by the way.


MS. HAUSEY: That's okay.

And I represent the Association of California Care Operators.

First, before I give my testimony, I wanted to make a correction on the social rehab definition. Per Title 22, social rehabs are defined as temporary facilities for providing counseling services in a group setting for the mentally ill. Okay. It's not a -- it's not so much as a total rehabilitation. They provide counseling and other services for the mentally ill. So that is the correct definition for social rehab.

The other correction that I wanted to make, on the 6-bed mom-and-pop, in our industry, when we refer to the mom-and-pop side of the industry, we're talking about owner-operated facilities. Those are facilities that are owned and operated by the individual that is licensed. They generally do not have staffing requirements that they have to comply with, other than 24-hour care. It can be the mom and the pop and family members. Staff-operated facilities, on the other hand, are the facilities that fall -- and I think SEIU is probably -- that's the group that they're looking at -- they are also owned by an individual licensee, but do have staff in them. So I just wanted to provide that clarification when you say that, because we do know the industry and who is under that facility guidelines.

Basically, I wanted to -- and I provided you with my testimony for today -- so, over the last year we've heard compelling testimony from proponents and opponents regarding the amendment of Wage Order 5, and without a doubt, both sides agree that there is a crisis in this industry that requires a major overhaul within the current system, which is increased funding for employees in residential care.

The opponents state that thousands of employees will be affected if the Wage Order 5 is amended to reflect the exemption of overtime and sleep time. And the question that should be on the minds of all concerned is what will happen to these employees during the interim. While new funding streams are debated in the legislature, these employees must continue to provide for their families on a daily basis. We know that this is only a temporary solution, but it allows the employer to continue to provide employment to these individuals until there is a remedy.

The inclusion of the mentally ill into the current language will bring California into compliance with the federal definition of residential care. And I provided the FLSA's definition of residential care, and the mentally ill are already included under the coverage section.

The number of staff that could be added by this definition per the opponents' numbers does not reflect the fact that these facilities only receive SSI payments, and that's for the mentally ill, and still must remain in compliance with regulatory and insurance requirements, compounded with use permit fees for facilities over seven or more. We ask that you take into consideration that currently these employees are working, and that if this exemption is not granted, it could create a hardship, as these individuals we are discussing may not have jobs at all, as providers are struggling to keep up with the increases that have been discussed at previous hearings.

We therefore ask the opponents to consider the following. Is it not better to keep the employees working and be able to provide for their families, versus creating another burden to the already overburdened unemployment system?

So we therefore urge your support for the exemption to Wage Order 5 to include 15 beds or less and the mentally ill.

Thank you.


COMMISSIONER ROSE: Would you please clarify one more time for me --


COMMISSIONER ROSE: -- I received the fax that you sent me -- SSI is only paid for mentally ill people?

MS. HAUSEY: The mentally ill only receive the --

COMMISSIONER ROSE: The State of California

pays --

MS. HAUSEY: The State of -- the SSI portion -- well, for the mentally ill only, they only receive the SSI component, which is $818. That's what they receive. They do not have additional funding sources such as the developmentally disabled, that have the amounts that I faxed to you.





MS. HAUSEY: Except for the --


MS. HAUSEY: -- SRP, yes.


MS. BANE: What's the SRP?

MR. JACKSON: That's the Social -- Social Rehabilitation Program. That's a small percentage of the total mentally ill population that is served in California. I think it's probably about 20 percent that participate in the SRP program. The other 80 percent of the providers only get the Social Security rate. So that's a special program for only one small percentage.

MS. BANE: Thank you.

MR. JACKSON: But also, to clarify, is that persons with developmental disabilities and -- they get the Social Security rate also as a base rate, and the regional center for the developmentally disabled will supplement on top of the Social Security rate, which is basically services that are provided above and beyond -- because that Social Security rate basically pays for -- for room and board, basically. It's not really for services at all.

COMMISSIONER DOMBROWSKI: Just for the transcript, could you identify yourself?

MR. JACKSON: I am Wardell Jackson, the president of the Association of California Care Operators.

And so, therefore, that's why the system is so bad for the mentally ill, as they only get that basic Social Security rate, which is for -- for room and board. And it pays for the rent and food, but then where does the staffing come in? That's why they have -- that's why they've been working on the SRP program to supplement, but there has not been money or legislative power to increase that program from like the 10 or 20 percent that is served. So, therefore, the balance only get the Social Security rate. And then they have 15 beds, but they still have to run -- they have to have -- according to licensing, they have to have at least one staff per six people, even with the 15 beds. So you can't -- with the 6 beds, you can have one per six, but when you get over six, you have to add another staff per consumers over six. And if they don't get the SRP, they will still get that Social Security rate, and that's all.

COMMISSIONER DOMBROWSKI: Go ahead, whoever wants to speak next.

SISTER MARY ANN LEYBA: I'm Sister Mary Ann Leyba.

Mr. Dombrowski, respected members of the Commission, thank you for the opportunity to make just a few brief remarks.

I'm here to ask you to please consider including homes with 15 beds or less in the exemption. There are very few of these large programs in the state, and I think that you'll be hearing that through testimony later. These large homes have survived the downsizing that really has occurred in our state because of the fine quality and the excellence of the services that we provide.

If you'll indulge me for just a minute, I think the example is a very good one. I recently took a trip up to Lake Tahoe, and the thing that really amazed me is when I looked on the sides of the highway and I saw these trees that were so big that were set in the rocks of these -- on the sides of the highway. And the thing that I was in awe of is how these trees grow and thrive and survive in these rocks. And I give you this example because it's really a picture of our industry, that it's only because of the flexibility that we've had that has allowed our industry to continue.

As Wardell and Frond and Lonnie and other people have told you, our income is fixed by the state. And more than that, it's attached to each person. So if you have a home that has capacity for six or twelve or fifteen, and you only have three and nine and ten, you are down in your income. You still have to have the staffing, but the income isn't there. And so, it's very hard for us. It's very hard for us to continue to exist. And then, of course, we're looking now at the increase of costs for utilities, food, gas, et cetera, et cetera.

And so -- but, you know, the reason, I think, that we really exist, and that tap root, I think, that comes out of these large trees and goes way down to ground and to soil, the tap root for us is the love and the care and the concern that the people, the employees in this industry, offer our people. I'm talking about our people in terms of people that are developmentally disabled.

I represent an agency that is staff-operated. But we only have two homes, so we are not a large program at all. We have one license for fifteen and then one for three. We are not a huge conglomerate. But I'm going to tell you it's very, very difficult to keep us going because of the constraints that I just talked about. And we're good to our staff. We pay between $12 and $15 an hour to our staff, with full benefits. So our employees are not perhaps as those that have been described by SEIU. But it's very, very difficult. We're impinged by all kinds of things, particularly from the fiscal point of view.

But I do want to emphasize to you that the thing that keeps us going is the care and the concern that we have on the part of our employees for our people.

Thank you very much.


COMMISSIONER ROSE: If I may, Sister, what are your group homes, the two, doing to increase the funding rate with the State of California?

SISTER MARY ANN LEYBA: Well, we certainly have -- you know, we're a part of the Developmental Disabilities Council, and I think there -- there was a rally here, I believe, on April the 6th, here at the Capitol, where quite a few of our people and staff, employees, came for the day to, you know, impact on the governor and the legislators to please don't further cut our field.

You know, a lot of us have to do fundraising. We find out that we're wearing two hats. We have to give care and concern according to Title 17 and 22, but then we have to give a lot of our time to fundraising, simply to, you know, make our bottom line.

I hope I answered your question.


Another question is to put someone in one of your care facilities, do you have a choice of the level of care that you take in? In other words, you could have all Level 1 or you could have all (h), (i), or --

SISTER MARY ANN LEYBA: The Department of Developmental Services, through the regional centers, tell us what level of care each home provides. And the levels go from 2 all the way to 4(i).


SISTER MARY ANN LEYBA: And so, the people that we serve, some of -- some of them that are here today, are Level 2.

COMMISSIONER ROSE: So, you -- if you have a license for a 15-bed care facility, you have no choice on the patients that you take?

SISTER MARY ANN LEYBA: According -- I have a choice on, you know, Mary, Jim, or Jack, but not in terms of the level of care.

COMMISSIONER ROSE: I see. So a 6-bed has so many of Level 2, 3, or 4, and a 15 has, naturally, more of each.

SISTER MARY ANN LEYBA: Same thing. Same thing.

COMMISSIONER ROSE: It's set down by --

SISTER MARY ANN LEYBA: They're either all Level 2, they're all Level 3, they're all Level 4.

COMMISSIONER ROSE: There isn't a mixture of --

SISTER MARY ANN LEYBA: No. No. It was that way years ago, where we were allowed to mix it, but not any more.

COMMISSIONER ROSE: Oh. So now, you get a license for a 15-bed, and you could have all Level 3.


MS. HAUSEY: Right.

COMMISSIONER ROSE: Or Level 4(i) or whatever.

SISTER MARY ANN LEYBA: Correct. Correct.






MS. HAMPTON: Hi. My name is Chairlean Hampton, and I'm a care provider. I'm second generation. My mother and father started a care home in 1968. We have a 10-bed facility, and we're a Level 2 facility.

And at the rising cost of just the liability insurance, I mean, it's gone -- everything has gone up, but our wages haven't gone up. We try to pay -- I try to pay a fair wage to the two workers that I have. I also work in my facility, along with my children, who help me because we don't have enough money to pay.

So, it -- I just think it's unfair to want to classify -- well, I consider my 10-bed facility to be like a ma-and-pa facility because we're not getting a whole lot of money to pay our staff and to continue with the cost of living, as far as the utilities going up, like I said, the insurance, and just day-to-day things of, you know, taking care of the clients. So I just can't see where we need to be -- that we need to be classified as being with the other people that have a big facility, like 25 or more. I think people with 15 or less should hold the exemption.


MS. BANE: Excuse me. Chair -- Mr. Chairman, may I ask a -- do we have a list of the rates for the different levels of care?

Commissioner Rose, do you -- have you seen that? Did you give --

COMMISSIONER ROSE: Yes. And I passed it around, or you took photocopies to give to the other commissioners.

MS. BANE: Thank you.

COMMISSIONER ROSE: It should be a cover sheet like this here, and then -- this is what you're looking for.

COMMISSIONER DOMBROWSKI: Mr. Jackson, do you want to say anything else?

Yes, Frond.

MS. HAUSEY: Commissioner, the -- one of the other statements I just wanted to bring to light, there are currently new facilities that are coming in to the system, as we speak, on a daily basis. There are new facilities that are opening. One of the drawbacks to those new facilities opening are, one, when they open, they do not want to open under the SSI category only. And the reason being is because with the SSI rate, these new facilities cannot exist. They could not even make mortgage payments, with those facilities. So a lot of those facilities do open, but if you were to go back into community care licensing, those same records, where you see these new facilities coming in, the majority of them, because if they cannot get at least the funding provided by developmental services, a lot of them just come in and phase out, or they do transition to elderly private pay or something of that nature to remain afloat.

So I just wanted to make that clarification as well.

MR. JACKSON: Okay. I want to thank all of you for allowing us to make this presentation today. I am Wardell Jackson, president of the Association of California Care Operators. And we represent providers all over the State of California.

The statement I'm making basically is the same that I've made for the last few years and I made in San Francisco also.

We are here today to urge you to support amending the wage order to include providers, also to include 15 or less beds and keep the homes for the mentally ill.

Our situation with the developmentally disabled is unique. As you have been hearing from us over the last few years, the Department of Developmental Services, when -- they have admitted to us that when they created the ARM system, which is the alternative rate model, a number of years ago, they did not include funds to include increases in salaries. And the alternative rate model was done about twelve years ago, and that provided increases for a cost of living every year that would increase with the State of California. But, unfortunately, it was -- when it was written into law, the governor had the right to red-line those increases. So it came into place, and every year for like ten to twelve years, it was red-lined. So for ten to twelve years, we never got the cost-of-living increase in accordance with the alternative rate model.

So, we still -- as providers, we still have that to deal with. That has -- the governor has also done a report that shows that we are 40 to 50 percent underfunded because of these years. This -- right now, presently, we are still underfunded. So now we're talking about another movement.

And we are pro staff, because we realize that -- I have three facilities of my own -- there are two that are Level 4(i)'s, one is a Level 3 -- the Level 3 facility I have, I only have four consumers in it, and I've only had four consumers for the last two years. So therefore, my income is down by like one third. The staff that I had when I had six consumers, I still have at four, because I could not fire those staff. I could have done it. They would be on unemployment. But yet, I'm losing money and I keep that staff there. That's just basically how we do business. We're not forced to do it that way, but this is how most providers, people who do the service, this is what we do, because this is -- this is just how we are.

Because of the lack of foresight in our industry, we're considered to lack funds. As we -- we're here to let you know that in spite of the fact that we have been underfunded, we continue to give quality service. Even though we have -- we cannot always hire the staff, we always give quality service.

Increases in workers' comp, liability insurance, fuel, transportation, energy, benefits, staff wages, health screening, background checks are all causing many excellent homes and programs to close, which is a direct negative effect on the residents we serve. Everything goes up except our rates.

We, along with the consumers that we serve -- well, one question was asked before, "What are we doing?" What I'm doing as a provider myself -- and that's one of the reasons why I work with the Association of California Care Operators -- I don't get paid for what I do -- what I am doing is I'm trying to make sure that legislators know what our plight is. We come up here a lot. We meet with legislators on the local levels. And that's what we're doing with our members also. We're getting together. We work with the Provider Vendor Advisory Board of the regional center -- of our regional centers, and we encourage other providers to do the same thing with their regional centers. And we meet with legislators in our districts to let them know what our plight is, because a lot of legislators are new now and they do not know anything about our industry at all. They don't know about this ARM program that happened years ago. They don't know about our 40 to 50 percent underfunding. So those are the kinds of things that we do all the time, because people -- that we have been a closeted industry, and people do not know what we actually do.

So -- so we realize that we are in a crisis situation, and we are trying to correct it by letting the California Legislature know that we are in trouble and they have to do something about this, because some of their best citizens who are developmentally disabled and mentally ill and the elderly will be on the streets.

Thank you very much for the time.

COMMISSIONER ROSE: I have one question for all --


COMMISSIONER ROSE: I have one question for all of you. Out of the four of you and the facilities that you represent or work at, are any of you union members?

(Panel members shake heads.)



MR. JACKSON: I would like to make a note that I worked for SEIU 790 for five years a number of years ago.


COMMISSIONER CREMINS: I've got one question, maybe more towards Wardell or somebody. In your association, how many individuals do you think are holding multiple licenses or running multiple facilities? I mean -- and you probably can't give me an exact number -- is it 5 percent or is it 70 percent?

MR. JACKSON: In my membership, there are maybe 5 to 10 percent. Most -- most of my members are smaller facilities. They're 6-beds. Some are 15-beds. Like I said, myself, I have three facilities myself, but most people do not. A lot of them have single beds. I'd say it's a -- it's a smaller percent rather than a larger percent.

COMMISSIONER CREMINS: How many employees do you

-- how many employees do you have yourself?



MR. JACKSON: I have 22 employees.


COMMISSIONER DOMBROWSKI: Okay. We have one more speaker, Barbara Maizie.

And I think this is your handout that --

MS. MAIZIE: Yes, it is.



COMMISSIONER DOMBROWSKI: It's the "Community Care Licensing Division, Licensed Adult and Senior Care Facilities," this one.

MS. MAIZIE: That's for -- there are three topics I'd like to address, and that's for one of them.

Chairman Dombrowski and honorable commissioners, thank you for this opportunity. My name is Barbara Maizie. I'm the executive director of an organization called Contra Costa ARC, and I'm also on the board of directors of The Respite Inn, which is an adult residential facility with 10 beds that provides out-of-home respite for families that need relief from the care of their adults with disabilities in the home. It's located in Contra Costa County.

I want to thank you for this opportunity. I served on the wage board at Lonnie Nolta's request. And when she passed away unexpectedly in March, which was a terrible loss for everyone, I have tried to kind of step in a little and pick up the work she was doing to prepare for this hearing in terms of gathering some data and responding to some of the questions that you asked at the last meeting of the Commission on this subject. I realize her shoes are far too big for me to fill, and I also realize what a job it was.

And the main -- the main issue where that comes into play is the numbers. But first, I'd like to just let you know there are three topics that I think are important. I'll leave the numbers for last. The first one is about the closures of homes. And the second one is about the date -- well, I guess the second one can be the numbers. And then the last one is the date for sunset of this exemption that we have listed.

As for the closures of homes, it has been interesting to watch -- I really learned about the community care licensing Web site, more than I ever wanted to know, in looking at the changes in the numbers of homes in California. And it does vary. It actually varies from week to week. They update that Web site. And one of the things that you need to know is that there are homes entering business and leaving business all the time. But the most significant thing is that there are lots of people entering the system. The need increases at a much higher rate than the homes do.

Just for example, every year 10,000 new people become eligible for regional center services in California. Those are people with developmental disabilities. Some of them, of course, are children, so they don't need out-of-home placement right away. But the other thing that's happening is every year students graduate from high school, they become adults. They come to that point in their life where they need out-of-home placement. The need is growing exponentially there. And that's sort of a hidden figure.

So, the fact that numbers may go up and down, it doesn't reflect the real need in the community.

The other thing is -- let me see -- the issue of closures of homes, I found it very difficult to find documentation. Those numbers aren't tracked in a way that really would be useful to you because they don't separate out the homes that are closing because they decided to go out of business versus the ones that couldn't make it versus the ones where people decided to retire. And I didn't think it would be fair to use those numbers for you to make a decision like this.

So what I was able to get was a report from one regional center, which is in a particularly high-cost area. And that regional center did an analysis of the closures of homes in San Francisco County. It's Golden Gate Regional Center. And they, in the month of March, did a whole -- they looked at all the data on homes that had closed. And I want to just tell you the summary of the problem that they're facing.

They -- Golden Gate Regional Center, like other regional centers in high-cost areas, are really suffering for lack of resources for their people because of this home closure issue. The report from Golden Gate Regional Center listed 22 program closures in the last two years. And of those 22 program closures, 17 of them were homes, residential homes that we're talking about. So that kind of speaks for itself.

In addition to those closures -- and this is -- this is one regional center, and there are 21, so that would give you a sense of proportion. I did not get this report from the other 21, but I think San Francisco's problem is the most severe. So 21 program closures in the last two years. Of those, 17 were residential homes. In addition, they have 11 programs listed on what they call their endangered list, that they are in danger of going out of business in the near future. And of those, six are residential homes.

And they also had a list of programs that were reducing services because they could not financially keep going. They had to make cutbacks, because, you know, everything loses money so you -- sometimes you have to close your most high-loss cost center to keep going. On the reducing services list, there were 16 programs, and five of those were homes.

Then they had a list of programs that were relocating out of the San Francisco area because it was too expensive to do -- to stay in business there. There were four that moved out of the area, and all of them were homes.

And then the last figure that they collected was they looked at the start-ups that they had planned in their program development for the coming year, start-ups to meet the need that keeps growing. They had two start-ups that canceled out, that they just -- the reasons given were that the homes, as they were getting going, realized they couldn't -- they couldn't make it on the ongoing rates. Like Wardell was saying, the ongoing rates just weren't going to be able to support them, and I guess they realized that as they started, so they withdrew their start-ups.

I'm from the East Bay, where the Regional Center of the East Bay is the regional center, and I serve on the program development committee, Resource Development Committee. And frequently we see start-up funds or just agreements to start homes, and halfway through the process, they back out when they realize they can't make it.

So I just wanted to point out that the closure of homes issue is very significant. And if you want copies of this memo, I could have it made. It's from Golden Gate Regional Center.

The other thing about closures of homes, I was very worried when I realized I had to get into this subject of figuring out the numbers of facilities and trying to figure out what the distribution of staff was, how many there were in the different kinds of homes. It turned out to be very fascinating. And one thing I want to tell you that, hopefully, will relieve you is that I found that the numbers that I got, when I went into this with a technical staff person in my agency, really were pretty close to the numbers that Lonnie gave you last time. She was looking at a number from community care licensing on February 15th that said there were a total of 11,992 facilities. And that number is pretty comparable to the number that I got the week of March 24th, which you'll see on your handout, which is 11,602 facilities. So it is a lower number, and it's also -- I feel comfortable because most of the numbers that I got really are pretty consistent with what Lisa and the SEIU folks got. They're not perfect, but I don't think these numbers are perfect. But they're in enough of a range that I think you have a good picture.

So -- so I think that also speaks to home closures. Just the fact that the number of homes will be going down a little bit is a very big problem in a situation where the need for homes is increasing.

So, calling your attention, then, to the handout that I gave you, I want to tell you where these numbers came from. We looked at the community care licensing Web site, and what we found there was that to -- there isn't any way of really knowing how many staff there are. And I knew what you wanted to get at was how many staff are going to be affected by this. So all you can do is look county by county at the list of the homes, the actual ones with the names. And it's home by home, and how many beds they're licensed for.

So, knowing that we couldn't do that for the whole state, we picked seven counties, and we did the detailed analysis of that -- of every home in that county. The counties we picked were Alameda, Contra Costa, Monterey, Santa Clara, San Diego, and Solano Counties. And I can't -- oh, and also Los Angeles, because Los Angeles is the biggest. It has, by far, the greatest number of homes, and we wanted to include that. We thought that that representation of counties was pretty good for where most of the homes are, and pretty representative. Some are suburban, some are urban, that sort of thing.

So what we did was we looked at every single home in each of those counties and how many beds they were licensed for. And then we could extrapolate from that how many beds there were statewide. We took the average beds per home figure and extrapolated it statewide. And then, based on the number of beds, we had to make some assumptions about the ratio of how many staff to how many people in the facilities. And that -- I remember Lonnie saying last time that it's really almost impossible to do that because you just don't know. We know what the ratios are supposed to be. What they really are, we're not sure.

So we had to make some assumptions. And we assumed that for folks with developmental disabilities, it could range anywhere from one-to-one to one-to-six. We just figured it was in there as an average. And we averaged out around one-to-four.

And then, for the residential facilities for the elderly, RCFE, residential care for the elderly, we knew that that ratio was one-to-six. So we applied that ratio to the number of beds, and that's how we got to the numbers on this sheet, which I'll go over with you.

I also want to tell you I do have the detailed backup for every county, in case you want to look at that.

But in the summary, the top page shows the whole state, for all of the facilities. And behind it are three pages, one for adult residential facilities, one for residential care for the elderly, and one for social rehab facilities that you were talking about.

And you'll see that adult residential facilities are the ones that are primarily developmental disabilities. That's the 4,936, which is a number close to Lisa's number, I believe. And then the next page, the residential care for the elderly, 6,594 facilities statewide; and the 72 social rehab facilities. I think we're off by one number, but, you know, it's probably just the date that the numbers were pulled.

So what -- what we have, what I tried to give you, is how many homes there were that were 6 beds or less, how many homes there were that were between 7 and 15 beds, and then how many homes there were over 15 bids. And that's the numbers that you see at the top. There's nine thousand -- I'll just round -- 9,000 up to 6 beds, 1,000 7 to 15, and 1,300 over 15. What I realized was it doesn't really give the whole picture. You have -- you have to know, because some of those are very large -- excuse me.

Yes, sir.

COMMISSIONER CREMINS: This is your -- the cover page, the top page, is your estimate statewide of all facilities?

MS. MAIZIE: Yes, all facilities.

COMMISSIONER CREMINS: You did that estimate on a random sampling of six counties.

MS. MAIZIE: Seven, um-hmm.

COMMISSIONER CREMINS: Seven counties. Okay.

MS. MAIZIE: Including L.A., yes.

So, looking at that, applying the ratios that I told you about, we got a total number of staff currently working in these facilities of 101,031. And then we had to distribute them by size. And we did that by doing each county individually and extrapolating up.

And what you'll see is that the number of staff working in facilities of 6 or less is 31,000; the number in homes 7 to 15 beds is 6,700; and in over 15 beds, 62,707. That was the really interesting figure because I think what we're really talking about here is the big homes are primarily homes for the elderly. And those are the big companies. These are -- these are like -- I mean, I don't personally know them, but hundreds and hundreds of people live in one facility that's operated by one company. So it looked to me, at least, that this breakdown was helpful.

If you -- if you look at, on the backup pages, the first page, for adult residential facilities, you see that the staff -- at the bottom of that page -- staff in the beds of -- in the homes of 6 beds or less, 16,422. And then, in that group, 7 to 15 beds, there's just another 3,200 people. And I -- and then there's a -- then there's 5,500 for over 15. So you see that the 7-15 -- 7 to 15 beds isn't that many staff.

Same thing with residential care for the elderly, on the next page. There's 15,000 staff in the 6 beds or less group, and only 3,000 more in the 7 to 15 beds. I think that supports the fact that these are small facilities, for the most part. Over 15 beds has 56,985 staff. Those are, I believe, the group that you were not intending to extend this exemption to.

And then, for social rehab facilities, there are, interestingly, only 17 staff in the homes under -- 6 and under. And most of the staff are in the 7-15, as everyone has been saying here. I thought it was gratifying because these numbers turned out to match what people have been saying, that most of those homes in social rehab are the 7 to 15 beds. And there are 407 staff there.

So I thought that the numbers were helpful in that they showed where most of the staff are. And the vast majority is in the homes over 16 -- over 15 beds, that you don't want to exempt, and that -- just my feeling on looking at this and then knowing what I know about homes for the mentally ill, it's really a fairly small number of people that you'd be adding if you let it cover the 7 to 15 zone.

Any questions on that, or should I go on? Keep going?



MS. BANE: Excuse me.


MS. BANE: I have one question. The Golden Gate Regional Center has -- serves three counties?

MS. MAIZIE: They serve San Francisco, Marin --

MS. BANE: And San Mateo.

MS. MAIZIE: -- and San Mateo?

Is Bob here?

AUDIENCE MEMBER: (Not using microphone) Correct.


MS. BANE: Thank you.

MS. MAIZIE: Um-hmm.

Okay. Yes, those closures were for the three counties.

Thank you, Bridget.

Okay. So that's numbers.

The last question, or the last subject I wanted to talk about was -- oh, wait -- one more thing on the numbers.

I was interested in the comments that were made earlier by the SEIU folks about the nonprofits that do operate some 6-bed homes. I think you heard Sister Mary Ann speaking about how her agency is one of those. And I just wanted to point out I think it's almost impossible to get this down to where you're talking about for-profit or nonprofit. Most of the 6-bed mom-and-pops are not-for-profit, but most of the 6-bed homes that are operated -- that are staff-operated are operated by nonprofits. And if -- you know, speaking as someone who runs a nonprofit that is $8 million a year budget, that sounds like it might be a big, successful operation. But the truth is, you know, we get six and a half million dollars in funding, and we have to scrape the rest of it together. And so I don't -- I don't think that that distinction of nonprofit versus for-profit really counts. But I do think you can see, in the large elderly facilities, that that sort of tends to indicate that's where the big companies must be. And the nonprofits who raise funds to keep their 6 beds, or even their 10- and 15-bed organizations going, I think their commitment to paying overtime when they can is clear, that they do that.

And -- let me see -- and the other thing I wanted to say was, in listening to this, you know, I'm sure, far better than I do that in any decision that you make, there will be a few individual facilities where you wish you could have gone in there surgically and said, "Okay, this is the criteria, but not this one or two homes." I think there's going to always be a few of that, but the vast, vast majority of the homes that are going to be affected by this are either being run by individuals like Wardell and Chairlean, or organizations like East Bay Services or The Respite Inn that are really struggling to keep it together. So I hope you'll that under consideration.

I did want to mention one other thing. In the time between the last meeting and the one we're having here today, the bill for SEIU's long-term solution to this -- to the real problem has gone into print. It's now in print as AB 649, sponsored by Assemblywoman Pat Wiggins, from Sonoma, I believe, or Santa Rosa. And with that bill in bring, it made me want to share with you some things about the timelines that are in the bill, because it's now official, and I think it needs to be discussed.

I honestly cannot remember what you decided in the proposed wage order that you put out, of what the sunset was going to be on --


MS. MAIZIE: Okay. What I wanted to share with you is the dates that are in the bill and ask you to reconsider that. And I'll make the assumption now that SEIU's bill sails through the legislature and passes completely on time and the timelines are completely followed -- let's give that as the benefit of the doubt. If that happens, the way the bill is written, what is supposed to happen by January 1, 2005, is that the system for their workforce service centers gets put in place. And the first workers would become enrolled in the workforce services centers, i.e., would benefit from their long-term solution, beginning January 1st, 2006. And on that date, their solution would apply to workers who are assisting consumers who opt for the self-determination model of service delivery, and also in-home respite workers. So the most that could be hoped for by January 1, 2006, is that that small group of workers would be being employed in the workforce service centers.

The rest of the people who work in this field, including everyone who works in these facilities that we're talking about, are not scheduled by SEIU and Assemblywoman Wiggins to even become part of this solution until January 1, 2007. That is the date by which all others would be enrolled.

So -- so, knowing that under the best-case scenario -- and if this turns into a two-year bill, and sometimes timelines slide, it might not happen right on schedule -- best-case scenario, the providers of these residential services need this exemption until January 1, 2007, which is the earliest possible date that SEIU is saying that their solution could be in place.

So I was hoping that you would reconsider the date based on the law. And I do have a copy, if you want to take a look at it.

The other thing that you need to know is that the need for a long-term solution is absolutely, totally internalized by everyone in this system. Your question was very well taken. What's happening right now is that people all over the state are galvanizing into coalitions to work together to get past our differences, as all fields have, and really start a renewed lobbying effort. There's a statewide group called California Action Network -- Advocacy Network that is trying to pull people together throughout the state and is doing a pretty good job. The rally with 2,500 people on April 7th was our first real effort. But people are trying to pull this together in the traditional way that we have done, is to bring this need to the legislature's attention. That is going on.

Also, you need to know that now that the bill has been put into print, a lot of resistance to SEIU's proposed solution is becoming known. Several major organizations have taken a very strong oppose position. Many individual agencies have taken a very strong oppose position. And I think the likelihood is that this will be a very, very -- what do you call that? -- hotly debated --


MS. MAIZIE: -- potential solution. I think there are other solutions that the industry feels would be much more appropriate and well suited to what it is that we actually do and our missions, most importantly.

So, knowing that, I think that the timeline that's in here -- back to best-case scenario -- I think the timeline probably is going to have to slide if it becomes a two-year bill. So that adds to my appeal to you to please consider what the impact would be of having this end before their solution even gets into place. Let's go benefit of the doubt on their schedule, January 1, 2007, I think, if -- if everything goes the way they hope. So that would be my request.

Thank you.


COMMISSIONER CREMINS: My understanding, I think there's two or three other bills on the same subject manner, one of them being the chairman of the committee who has jurisdiction over this stuff, and she has her own thoughts too. So, I think basing timelines on legislation is pretty risky at this point, because it's -- from my mind, I think it's wide open right now on what's going to happen.

MS. MAIZIE: Okay. Does that sound like it would be going -- coming sooner or later?

COMMISSIONER CREMINS: They're all in print right now. There's three or four bills in print right now dealing with it.

MS. MAIZIE: Okay. Okay.

COMMISSIONER DOMBROWSKI: I think what he's saying, in my language, is that bills get amended --




COMMISSIONER DOMBROWSKI: So you can't just go from what's in the first print.


COMMISSIONER DOMBROWSKI: Commissioners Bosco and Coleman, do you have any questions?

COMMISSIONER BOSCO: I don't have any questions, but I wanted to thank the last witness because I think the work she did in compiling the statistics was very helpful.


COMMISSIONER COLEMAN: Agreed. I had -- I had requested some information about closures because I was really concerned about any impact we might have on that. And I really appreciate the research that was done on that question.

MS. MAIZIE: Thank you. It was a pleasure.

COMMISSIONER DOMBROWSKI: If there's no objection, I'm going to adjourn the public hearing.

(No response)

COMMISSIONER DOMBROWSKI: Hearing no objection, that's adjourned.

(Thereupon, at 11:28 a.m., the public hearing

was adjourned.)

COMMISSIONER DOMBROWSKI: And we will open the public meeting.

Consideration and/or adoption of proposed amendments to Wage Order 5, "Hours and Days of Work."

I guess we just heard from everyone, so I don't know if there's anyone else who wants to say anything.

(No response)

COMMISSIONER DOMBROWSKI: Seeing no one, any comments, Commissioner Rose, Commissioner Cremins?

COMMISSIONER ROSE: Yes. I would like to amend our proposed amendment. Is now the time to do it?




COMMISSIONER ROSE: The last part of the paragraph that says "and mental health" -- or "mental illness adults."

COMMISSIONER DOMBROWSKI: "Or mentally ill adults"?

COMMISSIONER ROSE: "Mentally ill adults." I would like to eliminate that and just put in "and blind."



COMMISSIONER DOMBROWSKI: Commissioner Coleman, do you have that?


COMMISSIONER DOMBROWSKI: You understood it. And Commissioner Bosco?

COMMISSIONER BOSCO: I heard it, yes.

COMMISSIONER DOMBROWSKI: Okay. Is there discussion?

(No response)




Is there any discussion?

(No response)


MS. BANE: Commissioner Cremins.


MS. BANE: Commissioner Rose.


MS. BANE: Commissioner Dombrowski.


MS. BANE: Commissioner Coleman.


MS. BANE: Commissioner Bosco.


MS. BANE: The motion fails, three to two.

COMMISSIONER DOMBROWSKI: Commissioner Coleman, I believe you had something you wanted --

COMMISSIONER COLEMAN: Yes. I'd actually like to offer a motion. And just by way of background, I have a master's degree in social work and was a social worker for several years in a homeless setting and also in several nonprofits and have had the experience of trying to refer clients to residential care in different communities, both in northern California and southern California. And I know how difficult it is to find placements, how limited the bed space is. And I feel very strongly that we need to be careful here not to create an even greater problem for the providers and for the patients, as well as for the workers of these facilities.

So, with that said -- and I do appreciate hearing the testimony and the excellent research on both sides of this issue -- I thought that the information from the SEIU as well as the providers was extremely helpful -- I would like to propose that we amend the proposed amendment to Wage Order 5, public housekeeping industry, to have it read:

"Section (A)(2) above shall apply to employees of 24-hour non-medical out-of-home licensed residential facilities of 15 beds or fewer for the developmentally disabled, elderly, and mentally ill adults."

And then:

"This section, 3(A)(2)(e), shall sunset on July 1, 2005."

COMMISSIONER DOMBROWSKI: So, in essence, you want to amend the proposal to 15 from 6.


COMMISSIONER DOMBROWSKI: Okay. Any questions on that?

COMMISSIONER CREMINS: Just for clarification, that's just for mental health, or was that for all facilities?

COMMISSIONER DOMBROWSKI: All the facilities. It's the same -- it's -- all the language stays the same in the proposal, except changing 6 to 15.


COMMISSIONER BOSCO: Mr. Chairman, can I make a comment?


COMMISSIONER BOSCO: First of all, I learned about this entire issue many years ago when I was in the legislature, and my mentor on it was Lonnie Nolta. And I very much regret that she isn't still with us, because I think over the years, I can't think of anyone that had the interests of the patients in the industry in mind more than Lonnie did. And I think the loss is a great one to the state and to our Commission, considering this.

But I have told her over the years -- and if she is listening somewhere now, I'll say it again -- that this whole system is broken down, and it's been pasted together and taped together, and it barely works. And I didn't like the commentary that the industry is now balkanizing against the proposed reform. I don't necessarily buy into every word of the reform that the SEIU is proposing, but at least they have put a lot of work into proposing something and to getting it to the legislature. And I think that the detractors and the people that now want to fight should think very carefully about that, because it is much better for the owners and operators to join with people that have power in Sacramento to come up with a solution for this, because if we go on fighting for another twenty years, we're -- it's not going to work.

And I do not believe the solution for this is to pay people -- to pay the workers less or to give them less benefits than other workers have in hospitals or other areas of healthcare in the state. That is simply -- is not a proper solution to this. It isn't now, and it wasn't twenty years ago.

So I really am impatient with this kind of a stopgap measure that I think we're going to take today. But having said that, there's no doubt that there's an emergency out there. There's no doubt that the legislature has slacked off of coming up with any solutions, that the budget situation in the state is dire. And I don't really think we as a Commission have much of a choice. So, for that reason, I'm going to support Commissioner Coleman's motion, but only that this really will be the last time.

And the last thing I'm going to say is we do have a meeting set up with the caregivers, the union folks. I don't know to what extent we can really affect this. But I certainly am willing to continue to put the time into trying to resolve this.


Commissioner Cremins.

COMMISSIONER CREMINS: I am not sure if a -- what is the proper road to follow here. Is it proper to amend the motion or make a new motion? And correct -- maybe you can correct me.

COMMISSIONER BOSCO: I can't hear, commissioner.



COMMISSIONER CREMINS: I guess we'd like to amend the motion.

COMMISSIONER DOMBROWSKI: Well, what do -- why don't you just say what you want to try? Let's go from there.

COMMISSIONER CREMINS: We would like to incorporate:

"Section A(2) shall only apply to employees of 24-hour, non-medical, out-of-home licensed residential facilities for adults with mental illness, so long as the employer is an individual licensee who operates only one facility, the facility has 6 beds or fewer, and there are no more than five employees employed at that facility."

COMMISSIONER DOMBROWSKI: I would not support that motion. I mean, that's -- that's just totally out of the air. I mean, we haven't had any discussion about any of those issues, so --

COMMISSIONER COLEMAN: Commissioner Bosco, should we, just procedurally, deal with the motion at hand first, and then if there is -- and then move along to a second motion? Or is Commissioner Cremins seeking an amendment to the current motion?

COMMISSIONER DOMBROWSKI: He's seeking an amendment --

COMMISSIONER CREMINS: Seeking clarification.

COMMISSIONER DOMBROWSKI: And you heard it clearly?


COMMISSIONER DOMBROWSKI: Then we can have -- you can comment.

COMMISSIONER COLEMAN: Okay. No, I'm afraid -- I'm afraid I won't be able to accept the amendment. I really think it's important to keep the 15 beds. And I do agree with Commissioner Bosco that the system is -- that this is a stopgap measure. I don't think it's -- I don't think it's a long-term solution, but with the sunset date, I think we have some motivation and a time limit to really keep working on the solution. And I'm very grateful for the time that Commissioner Bosco has spent on this.

So, with that, I would like to keep my motion in its original form.

COMMISSIONER CREMINS: I think I've misstated my motion. I apologize. Basically, to cover only those individuals who have one license and operate one facility, regardless of the bed size.

MS. BANE: Excuse me. It's --

COMMISSIONER COLEMAN: It would be precluding those who operate multiple facilities?



MS. BANE: Yes. I think that procedurally, Commissioner Coleman has made her motion. Commissioner Cremins would like to suggest an amendment to Commissioner Coleman's motion, but --

COMMISSIONER CREMINS: Why don't I -- why don't I withdraw my motion and make it simple?

MS. BANE: That would simplify things, if we could take these one at a time.


COMMISSIONER DOMBROWSKI: Well, what we have -- let me clarify. We have Commissioner Coleman's motion on the table.


COMMISSIONER DOMBROWSKI: We have not had a second yet.


COMMISSIONER DOMBROWSKI: Okay. We now have a second. We are having discussion. Other commissioners are asking Commissioner Coleman if she will accept amendments to that motion that's on the table.

COMMISSIONER CREMINS: And I will withdraw my motion.

COMMISSIONER DOMBROWSKI: And Tim -- and Commissioner Cremins has now withdrawn his motion.

And now, is there anyone else who wants to discuss this?

(No response)

COMMISSIONER DOMBROWSKI: Okay. Having no discussion, let's call the roll.

MS. BANE: Commissioner Cremins.


MS. BANE: Commissioner Rose.


MS. BANE: Chairman Dombrowski.


MS. BANE: Commissioner Coleman.


MS. BANE: Commissioner Bosco.


MS. BANE: The amendment passes, three to two.

COMMISSIONER DOMBROWSKI: Okay. So, for clarification, it is the language that was circulated, discussed, with one amendment, which is 6 beds has been amended to 15 beds.

MS. BANE: That's correct.


MS. BANE: And if there are other amendments to be offered, I believe that they can certainly be offered before the close of this procedure.

COMMISSIONER ROSE: I would like to offer an amendment.



" . . . so long as the employer is an individual licensee who operates only one facility, and the facility is a 6 bed -- or is 6 beds or fewer, and that there be no more than five employees employed by the facility."

COMMISSIONER DOMBROWSKI: We have a motion on the table from Commissioner Rose.

Did both Commissioner Coleman and Bosco hear that?




MS. BANE: Is there a second?


COMMISSIONER DOMBROWSKI: We have a second from Commissioner Cremins.

Any discussion?

(No response)

COMMISSIONER DOMBROWSKI: Having no discussion, let's call the roll.

MS. BANE: Commissioner Cremins.


MS. BANE: Commissioner Rose.


MS. BANE: Chairman Dombrowksi.


MS. BANE: Commissioner Coleman.


MS. BANE: Commissioner Bosco.


MS. BANE: The motion has failed, three to two.

COMMISSIONER DOMBROWSKI: Any other discussion?

(No response)


MS. BANE: There is a report, Mr. Chair, and it has to do with two lawsuits, but we don't have to go into closed session for this.

COMMISSIONER DOMBROWSKI: That's the email that was in the packet?

MS. BANE: That's correct.

COMMISSIONER DOMBROWSKI: I'd just call that to everyone's attention. So it's just a status report on that.

MS. BANE: It's a status report, and the memo speaks for itself. And that's all I have.


Do I have a motion to adjourn?

COMMISSIONER ROSE: Motion to adjourn.

COMMISSIONER DOMBROWSKI: We have a motion and a second.


COMMISSIONER DOMBROWSKI: Okay. We have a second from Commissioner Coleman.

All in favor, say "aye."

(Chorus of ayes)


(No response)


Thank you.



MS. BANE: Thank you. We'll sign off now unless you have something else.



MS. BANE: Bye-bye.

COMMISSIONER BOSCO: And, Leslee, thanks too.

(Thereupon, at 11:41 a.m., the public meeting was adjourned.)




I, Cynthia M. Judy, a duly designated reporter and transcriber, do hereby declare and certify under penalty of perjury under the laws of the State of California that I transcribed the tape recorded at the Public Hearing and Meeting of the Industrial Welfare Commission, held on April 24, 2003, in Sacramento, California, and that the foregoing pages constitute a true, accurate, and complete transcription of the aforementioned tape, to the best of my ability.

Dated: April 25, 2003 ______________________________