A registered sex offender who is facing new charges in Marin was assigned to work as a caregiver by a county agency.
The agency — the In-Home Supportive Services Public Authority of Marin — matches caregivers with people certified as eligible by the Marin County Department of Health and Human Services. Recipients are typically low income, over the age of 65 and have a physical or mental disability.
The agency gave an assignment to Brett Emmanuel Ortiz in April. Ortiz, 59, was convicted of a lewd or lascivious act upon a child under 14 in Kern County in 1989, failure to register in Marin County as a sex offender in 1998 and indecent exposure in Marin County in 1999, court records show.
In June 2022, Ortiz was booked into Marin County Jail on suspicion of molesting a child younger than 14 following a six-week investigation by the Novato Police Department. His jury trial on the charge of committing a lewd act upon a 9-year-old child is scheduled in Marin County Superior Court on Sept. 13.
Ortiz, who is registered with the state as a Novato resident, could not be reached for comment.
“It’s unfortunate that someone accused of a crime is able to be in the community for so long before being tried,” said Dario Santiago, the public authority’s executive director, noting that trials have been delayed due to the COVID-19 pandemic.
Santiago said his agency followed the letter of the law in recommending Ortiz.
Benita McLarin, director of the Health and Human Services Department, wrote in an email Thursday, “As always, the health, wellbeing and safety of our community is our top priority. I’m confident that our public authority is working hard to thoroughly vet all IHSS workers to the greatest extent possible under the law.”
State law prohibits people who have been convicted of a “tier 1” crime within the past 10 years from serving as In-Home Supportive Service (IHSS) workers. Tier 1 crimes include abuse of a child; abuse of an elder or dependent adult; and fraud against a governmental health care or supportive services program.
Convictions that occurred more than 10 years ago do not affect eligibility.
State law also bars people who have been convicted of “tier 2” crimes within the last 10 years from serving as IHSS workers. Tier 2 crimes include certain violent and serious felonies, including murder, rape, robbery, burglary, extortion and lewd acts on a child under the age of 14.
They also include any felony offense for which a person is required to register as a sex offender and any felony offense for fraud against a public social services program. When it comes to tier 2 crimes, however, the law provides for exceptions.
People who have been convicted of a tier 2 crime within the last 10 years may still serve as IHSS caregivers if they had the crime expunged from their record; if they have been granted a “general exception” by the state’s Department of Social Services; or if the person whom they are caring for submits a waiver.
The crimes for which Ortiz was convicted all occurred over a decade ago and, under state law, pending charges have no effect on caregiver eligibility.
The laws governing caregiver background checks and eligibility were tightened by Gov. Arnold Schwarzenegger in 2010. The changes were contained in two bills, AB 1612 and SB 856, that Schwarzenegger approved as part of a budget package. The bills effectively added the tier 2 crimes to the list of convictions that bar people from working as IHSS caregivers.
A month before Schwarzenegger approved the bills, the Los Angeles Times ran a story reporting that more than 200 people convicted of crimes such as rape, elder abuse and assault with a deadly were being permitted to work as IHSS workers.
The Times reported that state and county investigators had identified 996 convicted felons working or seeking jobs in the program since background checks were initiated in 2009 and that only 786 of them had been declared ineligible.
In the case of Ortiz, Santiago said he applied to be on the public authority’s registry of caregivers, was interviewed by authority staff and added to the registry on March 29, 2023.
All prospective caregivers are required to have their fingerprints taken and sent to the Department of Justice for a background check. Santiago said the results of the background check are sent directly to the public authority.
The only person at the authority who gets to see the results is the employee designated as the authority’s “custodian of records.”
“That person can’t share any details of the records with anyone else,” Santiago said. “They only say if the person passed or didn’t pass the background check.”
However, in Ortiz’s case, another caregiver notified the public authority of Ortiz’s arrest in June 2022, which was reported in the Independent Journal.
“Once we found out,” Santiago said, “we removed him from the registry. This means when a recipient contacts us for a list of caregivers, his name will not be included.”
But while the public authority could remove Ortiz from its registry, it could not bar him from working as an IHSS worker. Santiago said he isn’t sure if Ortiz whether continuing to do so.
Santiago said most of the caregivers working in Marin are not on the public authority’s registry.
“We have around 380 providers on our registry, and there are a total of 1,800 people assigned as caregivers,” Santiago said. “Most of the caregivers are people that the clients already knew.”
Santiago said some Marin recipients don’t mind if their caregiver has a criminal record.
“That happens sometimes,” he said, “when you have a family member who wants to take care of a relative, and they have a tier 2 offense on their record. There is nothing we can do on our end to stop them because the client is the employer.”
Santiago said 45% of the IHSS caregivers in Marin share housing with their clients and 38% of those are also related to their clients.
Santiago said more than half of the IHSS recipients in Marin are over the age of 65 and fewer than 10% are under the age of 18.
Santiago said there is a shortage of IHSS workers in the county, particularly caregivers who speak English. He said there are 150 people authorized to receive services who can’t find a caregiver, and the authority had a 40% turnover in caregivers over the last year. IHSS workers are paid $16.95 an hour in Marin County.
Jonathan Frieman, a member of the public authority’s board of directors, wrote in an email, “The system does not adequately take care of the most vulnerable — both provider and consumer — and that is the real story.”
Undocumented immigrants are not allowed to serve as caregivers.
“That is an issue with us,” Santiago said, “because the state has approved people who are undocumented to be recipients of the services.”
He said that means the relatives of the undocumented recipients often can’t serve as their caregivers.
AB 1387, a bill introduced by Assemblyman Phil Ting, D-San Francisco, would state the Legislature’s intent to enact subsequent legislation to permit undocumented IHSS recipients to select a relative as their provider of choice, regardless of immigration status.
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