The California Department of Social Services (CDSS) has issued guidance regarding exceptions from the IHSS provider overtime limits for extraordinary circumstances. In general exceptions from the overtime limits are available if (1) the recipient has complex medical or behavioral needs that must be met by a provider who lives in the same home as the recipient; (2) The recipient lives in a rural or remote area where available providers are limited or (3)–The recipient is unable to hire another provider who speaks the same language as the recipient. (See ACL 18-31.) These criteria are called the Exemption 2 criteria.
When there is a request for an Exemption 2 overtime exemption, the county must accept the request regardless of whether it appeals the provider will be determined eligible. When a verbal request is made, the county should provide the individual with a form SOC 2305.
Counties can rely on information in CMIPS but should not deny an Exemption 2 request based only on information in CMIPS. Counties must talk to the provider, the recipients, the assigned social worker and any other active providers to determine whether the exemption requirements are met.
Counties must document the justification for an Exemption 2 determination in CMIPS including the criteria evaluated, why the determination was made, the attempts made by the recipients to hire additional providers and why those attempts were not viable, and a description of the assistance provided by the county in attempting to identify an additional provider.
Recipients are not required to exhaust all options for hiring an additional provider. Individuals are required to make reasonable attempts to hire additional providers.
The Exemption 2 policies are separate from and do not supersede any other IHSS program rules. Although changes in need may impact the continued need for an overtime exemption, requests regarding IHSS needs should be evaluated using IHSS program rules. For example, a request for reassessment should not be denied because there is an overtime exemption. The receipient’s needs should be reevaluated, and then any impact on the overtime exemption should be determined.
For minor recipients with a parent provider, the county should first evaluate whether the parent is an eligible provider, and if so, then evaluate eligibility for an overtime exemption.
The provider can reapply for an Exemption 2 at any time. However, to be reevaluated, there must be a change in the provider or recipient’s circumstances which has the potential to make a previously ineligible provider eligible for an overtime exemption. County staff should contact the individual within 10 days to determine the change in circumstances.
If the county determines that there has not been a significant change in circumstances, the county should not accept the application and should send a SOC 2325 form.
An Exemption 2 is terminated if the provider with an exemption is assigned to a new recipient’s case, terminated from the case of one of the recipients included in the exemption, or the recipient included in the exemption is terminated from IHSS.
Cases approved for an Exemption 2 should be reevaluated annually. (ACL 19-100, October 29, 2019.)