IHSS provider general exception regulations

The California Department of Social Services (CDSS) has issued new regulations implementing the process to request a general exception or waiver of criminal background for In Home Supportive Services (IHSS) providers.  The regulations address the crimes for which a waiver or general exception is possible (called Tier 2 crimes) and the process to request a waiver or general exception.

The regulations include define Tier 2 crimes as serious or violent felonies, felony offenses for which a person is required to register as a sex offender and felony offense of fraud against a public social services program.  Although not mentioned in the letter, the regulations also make non-violent property crimes a Tier 2 offense.

In general, an exception can be granted if the applicant demonstrates rehabilitation.  However, for sex offenses or crimes involving physical harm or risk of physical harm to another person, the applicant must show clear and convincing evidence that the applicant no longer poses a risk to the public if less than 8 years (10 years if two offenses) have passed since the applicant’s most recent incarceration, probation or parole.  For fraud or non-violent property offenses, the applicant must show clear and convincing evidence that the applicant no longer poses a risk to the public if less than 6 years (10 years if two offenses) have passed since the applicant’s most recent incarceration, probation or parole.  For any other excludable offense, the applicant must show clear and convincing evidence that the applicant no longer poses a risk to the public if less than 4 years (10 years if two offenses) have passed since the applicant’s most recent incarceration, probation or parole.

The regulations list documents to be included with the request.  The applicant must request a general exception or waiver request to the county within 45 days of the notice denying provider status because of a criminal record.  If the county denies the request, the applicant can do a written appeal to the state.

CDSS also issued a general exception request form and a form to appeal denial of a general exception request to the state.

The regulations are located at MPP section 30-778 et. seq.  The regulations are effective July 1, 2019.  (ACL 19-64, July 3, 2019.)

Separation of SIU and eligibility determination functions

The California Department of Social Services (CDSS) has issued a reminder to counties that management of eligibility determination and program integrity investigation must be separate.

County Special Investigative Unit (SIU) staff is responsible for preventing and discovering fraud by applicants and recipients.  SIU staff must investigate fraud allegations.  County eligibility workers are responsible for referring cases to the SIU.

The SIU must be a separate organization, independent of organizations performing eligibility and benefit determination functions.  Counties must ensure separate and independent operation of eligibility and investigation activities.  SIU staff cannot dictate CalWORKs or CalFresh eligibility determinations but can make recommendations.  (All County Welfare Directors Letter May 1, 2019.)

IHSS Provider Enrollment

The California Department of Social Services (CDSS) has issued a reminder to counties that applicants to be In Home Supportive Services (IHSS) providers have 90 calendar days to complete all enrollment requirements.  The 90 day period begins either when the prospective provider completes one enrollment requirement or when a recipient designates in writing the individual as their provider.

An applicant to be an IHSS provider is ineligible if they do not complete all enrollment requirements within 90 calendar days of starting the enrollment process.  However, the county can extend the period to complete the enrollment process by 45 calendar days for good cause.

If a prospective provider begins providing authorized services for an eligible recipient before they are determined eligible to be enrolled as a provider, they may be eligible to be paid back to the date of application.  (ACIN I-30-19, May 22, 2019.)

Reasonable accommodations in CDSS and DHCS programs

The California Department of Social Services (CDSS) and the Department of Health Care Services (DHCS) have issued a joint letter reminding counties of their obligation to ensure equal access to persons with disabilities to state and federal funded programs.  This includes providing reasonable accommodations to qualified persons with disabilities and effective communication through auxiliary aids and services.  These obligations apply to all county administered programs, services and activities funded by, or with federal pass-through funds from CDSS and/or DHCS.  These obligations also apply to county contractors and vendors that provide program benefits or services.

Counties must adopt written policies detailing how they will comply with these requirements.  Counties must have a procedure for complaints regarding disability discrimination, including failure to provide a reasonable accommodation.  Counties must inform clients of the county complaint procedure and they may file discrimination complaints with the appropriate state or federal agency.

Title II of the Americans with Disabilities Act (ADA) prohibits counties from excluding from participation, denying benefits or services to, or discriminating against any qualified person with a disability.  A qualified person with a disability is a person with a disability who, with or without accommodation, meets the essential eligibility requirements for the program provided by the public entity.  Disability is a physical or mental impairment that substantially limits one or more major life functions, a record of such an impairment or being regarded as having such an impairment.  California law defines disability more broadly by removing the word “substantially” from the definition of disability, and counties are required to follow California law.  The ADA also guarantees equal access to individuals who have a relationship or association with a disabled person.

The ADA does not require public entities to allow a person with a disability to participate if that person poses a direct threat to health or safety of others.  However, the county must determine whether a person is a direct threat only evaluating whether reasonable accommodations can mitigate or eliminate the risk.  The determination of whether a person poses a direct threat must be made based on objective factual evidence and an individualized assessment.

The ADA requires counties to make reasonable accommodations by modifying their policies, practices, or procedures when necessary to provide equal access to persons with disabilities.   This includes waiving a program rule or policy to help a person with a disability, or a change in the way a county carries out a policy or practice affecting a person with a disability.

Counties must notify all clients of the right to request reasonable accommodations and the protection against discrimination on the basis of disability.

When the county has actual knowledge of a disability or when the need for an accommodation is obvious, county staff must offer to assist with appropriate disability specific accommodations.  Counties are encouraged to train staff to identify disabilities and offer to assist identifying accommodations.

When an individual asks for a change in county policies, practices, or procedures because a disability, this request should be treated as a reasonable accommodation request.  While counties can make a reasonable accommodation request form available, counties cannot require individual to use a specific form for a reasonable accommodation request.   Reasonable accommodation requests can be made in person, by telephone or in writing by the individual or someone acting on the individual’s behalf.  It is not necessary that a person be an authorized representative to request a reasonable accommodation.  There is no limit to the number of accommodation requests a person can make, and each request must be individually evaluated.  Counties cannot impose an arbitrary limit on the duration of a reasonable accommodation.

County staff must document all reasonable accommodation requests and subsequent county actions in the individual’s case file.

If an accommodation is not immediately agreed upon, or if there is a disagreement about the appropriateness of a requested accommodation, county staff must engage in an interactive process with the individual requesting the accommodation or a person acting on their behalf.

A county can deny a reasonable accommodation request only when the accommodation would  fundamentally alter the nature of the program, service or activity, or would impose an undue financial or administrative burden taking into account all resources available to the program, service or activity.  The determination that an accommodation request would be a fundamental alternation or an undue burden must be made by the county welfare department director or designee and must be accompanied by a written statement of the reason for the decision.  If such a decision is made, the county must take alternative action to ensure that the person with a disability can access relevant benefits or services while avoiding a fundamental alteration or undue burden.

Counties cannot impose eligibility criteria that exclude or tend to screen out individuals with disabilities unless such criteria are shown to be necessary for the operation of the program.  Counties must provide programs, activities and services in the most integrated manner possible.  Counties cannot change individuals with disabilities for the cost of reasonable accommodations.

Counties must ensure effective communication with individuals who have vision, hearing or speech disabilities.   Communication with these individuals must be equally effective as communication with people who do not have these disabilities.  This requirement extends to companions of applicants or recipients.  For persons who are blind, have vision loss, or are deaf-blind, this requirement includes providing individuals with disabilities with auxiliary aids and services when necessary to communicate effectively. This can include providing written communication in large print, braille, accessible electronic format for use with a screen reader or via audio recording or a qualified reader.  For persons who are deaf, have hearing loss, or are deaf-blind, this requirement also includes providing a note taker, qualified sign language, oral, cued-speech or tactile interpreter, real-time captioning, telecommunication devices, or written materials.  For persons who have speech disabilities, this requirement includes providing a qualified transliterator.  Counties cannot require persons with communication disabilities to provide their own interpreter.  Counties may allow another adult accompanying an individual with a disability to interpret only in emergency situations or when requested by the persons with a disability.  Counties cannot rely on minors to interpret except in emergency situations when no other interpreter is available.

If counties choose to use Video Remote Interpreting, the service must meet specific technical performance standards.

Counties must consider how the individual normally communicates and must give primary consideration to a request for a particular auxiliary aid or service.

Counties must modify their policies, practices and procedures to allow individual with disabilities to use service animals on their premises.  Counties may not require certification or other proof that an animal has been trained or licensed as a service animal.  When it is not obvious what service an animal performs, county staff may only ask if the animal is required because of a disability and what work or tasks the animal is trained to perform.  (ACL 19-45, May 16, 2019.)

IHSS provider travel claims

The California Department of Social Services (CDSS) has issued clarification about IHSS provider travel claims.  IHSS providers must be paid for time spent traveling between locations where services are provided.  The provider must submit a Provider Workweek & Travel Time Agreement (SOC 2255) to be paid travel time.  Counties must accept travel claims, including retroactive claims for travel prior to the filing of the SOC 2255 form, as long as the travel claim is consistent with the information on the SOC 2255.  The provider must submit a Travel Claim Form (SOC 2275) for each time period that the provider is eligible to receive travel time.  For retroactive claims, county staff must request printing of the SOC 2275 and the print vendor will mail the retroactive SOC 2275 to the provider.  No retroactive claims for travel prior to February 1, 2016 will be accepted.

When a provider lives with a recipient, the provider is entitled to compensation for travel time if the provider provides authorized services for the recipient and then travel to another location to provide authorized services for another recipient.  The provider is entitled to compensation for travel back to their home if that travel is for the purpose of providing additional authorized services for the recipient with whom the provider lives.  Providers are encouraged to develop a work schedule to avoid unnecessary travel.

Counties should request an updated SOC 2255 form only if there is a permanent change in the provider’s travel time. The provider is not required to complete the Recipient and Provider Workweek agreement (SOC 2256) unless the county determines that the provider needs help in scheduling service hours to ensure that the provider stays within the recipient’s monthly authorized hours.  (ACIN I-18-19, March 29, 2019.)

IHSS Advance Pay overpayment recovery

The California Department of Social Services (CDSS) has issued a new notice of action from for recovery of In Home Supportive Services (IHSS) advance pay overpayments.  Advance pay allows recipients to receive an advance payment for their monthly IHSS services and pay their providers directly for their services.  Advance Pay is available only for Severely Impaired IHSS recipients as defined by Welfare and Institutions Code Sections 12303.4(d) and 12304(d).

Recipients receiving Advance Pay are responsible for reconciling timesheets at the end of each month.  When a recipient does not submit reconciling timesheets within 45 days of the issuance of date of the advance payment, there is a rebuttable presumption that the unreconciled amount is an overpayment.   This presumption is rebuttable and counties should attempt to assist recipients with any reconciliation issues.

CDSS issued a form notice of action, NA 1262, for Advance Pay overpayment recovery.  Counties should use this form to inform recipients of Advance Pay overpayments.  The form informs of the overpayment and states that collection can be by offset from future Advance Pay payments, and that recipients can directly pay some or all of the balance to shorten the time period of warrant offset.  (ACIN I-27-19, May 7, 2019.)