The California Department of Social Services (CDSS) has issued instructions regarding the process for administrative review extraordinary circumstances exemption from the IHSS overtime rules.  The criteria for the extraordinary circumstances exemption are in ACL 18-31, summarized here.

The provider or recipient has 45 calendar days from the date of the notice informing of the denial of the extraordinary circumstances exemption to request administrative review.  The request must be in writing on the CW 2313 form and mailed to CDSS.  CDSS will not accept administrative review requests by telephone.

If the administrative review request is timely, pending overtime violations will be suppressed during the administrative review.  CDSS will mail an acknowledgement of the administrative review request.  Notice to the provider will include date and time for a telephone conference to be held within 10 business days.  Notice to the recipient will also include the telephone conference if the recipient stated that they have additional information to provide.  Both the provider and the recipient can present information during the telephone conference.  If the provider or recipient ask to submit additional information, CDSS will allow 10 business days for that submission.

CDSS will review information in the CMIPS II computer system.  The ACL does not state the information reviewed in CMIPS II must be provided to the recipient or provider.  CDSS can ask the county for additional information.  The county will have 5 business days to provide the requested information to an email address only for use by the counties.  The ACL does not state that the additional information must be provided to the recipient or provider or that the recipient or provider has the opportunity to respond to additional information submitted by the county.

CDSS’ decision on the exemption request will be mailed within 20 business days of the telephone conference unless CDSS has provided additional time to submit information.  (ACL 18-58, May 31, 2018.)

The California Department of Social Services (CDSS) has issued instructions regarding the extraordinary circumstances exemption from the IHSS overtime rules.

The extraordinary circumstances exemption applies to providers who provide services for two or more recipients whose extraordinary circumstances place them at serious risk of placement in out of home care and the recipients meet at least one of the following: (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 and as a result the recipient is unable to hire another provider or (3) The recipient is unable to hire another provider who speaks the same language as the recipient resulting in the recipient being unable to direct their own care.  In addition, recipients, with the county’s help, must have explored available options for hiring an additional provider, and prior documented attempts to find other providers may be considered in meeting this requirement.

The complex medical or behavioral needs exemption means the recipient has personal care services that require specific attention and care and these services cannot be provided by anyone other than the line-in IHSS provider without having an adverse impact on the recipient’s physical tolerance and/or behavioral temperament related to a mental health condition.  Providing services by someone other than the current provider, would cause the recipient harm due to physical and/or emotional stress leading to out-of-home care.

Criteria to consider when evaluating the complex medical or behavioral needs exemption include: (1) whether the recipient has ongoing paramedical services that require a high level of skill to perform, (2) whether the recipient receives personal care services requiring specialized care, (3) Whether the recipient has a documented mental health condition and exhibits adverse behavior resulting in undue harm upon the introduction of a new provider, (4) whether the recipient attends an adult day program or receives respite care from another provider and whether that program or caregiver provides specialized therapeutic or medical care, and (5) whether the recipient currently or recently has had other IHSS providers and the impact those providers had on the recipient’s well-being.

The living in a rural area exemption means living outside of urbanized areas and urban clusters.  The county should consider the number of providers living in the geographic area, the number of providers willing to travel long distances to provide services and the recipient’s attempts to obtain a provider.

The unable to hire another provider who speaks the recipient’s language exemption requires determining the extent to which a language barrier impacts service delivery.  This criteria is met only if the inability to hire a provider who speaks the client’s primary language results in a carrier to the recipient directing their own services that cannot be overcome.  The county must assess whether services can be provided after initial interpreter assistance.

For minor recipients with two parents in the home, the second parent can provide services to fulfill remaining hours after the maximum is met if other criteria for parent providers are met.

Exemption requests are made on the CW 2305 form.  When the county receives that form, the county reviews case information and makes a determination.  Determinations are validated by a secondary reviewer.  The county then sends determination letters to both the recipient and the provider.  If the exemption is granted, the provider must complete and return the exemption agreement form, CW 2308.  Approvals last one year and are renewed annually.  The renewal process should be initiated at least 30 days before expiration of the exemption.

If there is a change in exemption eligibility, the county must end the exemption within 15 days.  If there is an intercounty transfer, the exemption continues until the new county conducts a face-to-face assessment.

The administrative review process for denial of extraordinary circumstances exemption is in ACL 18-58 summarized here.  (ACL 18-31, March 22, 2018.)