Author: Stephen Goldberg

CalWORKs overpayment collection threshold and discharge

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THIS ACL HAS BEEN SUPERCEEDED BY ACL 19-102, summarized here.

The California Department of Social Services has issued instruction regarding SB 726.  Effective July 1, 2019, SB 726 will increase the threshold for pursing CalWORKs overpayments and implement an expungement process for CalWORKs overpayments.

Previously, counties could not demand repayment of non-fraudulent CalWORKs overpayments that were less than $35.  Effective July 1, 2019, this overpayment threshold increases to $250.  The overpayment threshold applies only to closed cases.  When the case is active, counties must pursue collection regardless of the amount of the overpayment.  If the case involves a fraud allegation, the overpayment threshold does not apply.

If an overpayment is being repaid in installments, counties must cease collection when the outstanding balance falls under $250.  When there are multiple overpayments, the $250 threshold applies to each overpayment individually.

Effective July 1, 2019, counties must cease collection on non-fraudlent CalWORKs overpayments if the responsible individual has not received CalWORKs for 36 consecutive months or longer.  If a former recipient with an outstanding overpayment claim reapplies and becomes CalWORKs recipient within the 36 month time frame, the county will resume collection of the overpayment.  Overpayment discharge also applies to repayment agreements and civil judgment agreements.  When there are multiple overpayments, the 36 month time frame applies to each overpayment individually.  The 36 month time frame applies retroactively to non-fraudulent overpayments outstanding on July 1, 2019.


The 36 month discharge time frame does not when there is a pending fraud investigation unless the investigation is inconclusive or finds no fraud was committed.  The discharge time frame does not apply to overpayments established before December 1, 1996 because federal law requires collection of those overpayments.

In addition, mass overpayments, which are defined as an action or inaction that impacts either eight percent of the county CalWORKs caseload or more than 1,000 CalWORKs assistance units, whichever is greater, must be reported to CDSS.  After reporting, CDSS will determine if the mass overpayment was caused by negligence or fraud by the county, or a major system error by the state or the county.  CDSS will then determine if those overpayments can be discharged.  (ACL 19-19, February 21, 2019.)

IHSS provider enrollment issues

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The California Department of Social Services has issued clarification regarding various In Home Supportive Services (IHSS) provider enrollment issues.   

Prospective IHSS providers must undergo a background check in order to enroll as a provider.  If an individual has a Tier 1 conviction in the last 10 years, they are barred from being an IHSS provider.  Tier 1 offenses are specified abuse of a child, abuse of an elder or dependent adult and fraud against a government health care program or supportive services program.  Tier 2 crimes also bar an individual from being an IHSS provider for 10 years, but the prospective provider can apply for a waiver.  Tier 2 crimes are a violent or serious felony, a felony for which a person is required to register as a sex offender, and felony fraud against a public social services program. 

CDSS provided a new plain language list of Tier 2 exclusionary crimes and explanation of some of those crimes.  Issues in these explanations include that failure to register as a sex offender, by itself, is not a Tier 2 exclusionary offense, and that a provider who has a Tier 2 felony reduced to a misdemeanor is eligible to work as an IHSS provider.  In addition, any incarceration time for a probation or parole violation is considered part of the original sentence and the ten year bar ends when incarceration for the probation or parole violation ends. 

In general, court orders or court documents are not to be used to deny or terminate IHSS provider enrollment.  Only notice from the Department of Justice can be used to deny or terminate provider enrollment.  However, court orders or court documents can be used to clarify the charged offense or conviction.  In addition, court orders or court documents can be used to determine provider enrollment for non-California offenses.

CDSS also discussed rules regarding minors as IHSS providers.  Minors must be at least 12 years old to obtain a valid work permit.  Minors age 12-13 can only provide limited domestic services and may only be employed on school holidays, weekends or vacations.  Minors age 14-15 can provide cooking or food preparation services but only when supervised by another person over age 18, can work three hours per day school day outside of school hours and eight hours per day on any non-school day.  Minors under age 16 cannot provide medical accompaniment or grocery shopping/errands which would require them to operate a car, and it is recommended that they not administer or dispense medication to recipients.  Minors age 16-17 can provide cooking or meal preparation unsupervised, can work four hours per day school day outside of school hours and eight hours per day on any non-school day and may work a maximum of 48 hours per week.

CDSS also stated rules regarding expired immigrant work documents.   If a non-citizen’s green card or work permit has expired, they are not allowed to work in the United States and therefore cannot be IHSS provides until their work authorization is restored.

An applicant to be a provider must provide a photo identification issued by a United States federal government or state agency or a recognized Native American tribe.  The photo identification does not need to be reverified.   If the photo identification is valid at the time of application, it remains acceptable.

If an individual applies to be a provider in another county, the original county must transfer documents except for the criminal background check, which must be done again by the new county.

Counties must allow labor organizations representing IHSS providers to give a 30 minute presentation during the IHSS provider orientation.  (ACL 19-14, February 7, 2019.)

IHSS parent provider issues

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The California Department of Social Services has issued clarification regarding application of In Home Supportive Services (IHSS) regulations to parent providers.   

A parent living with their minor recipient child is considered unable or unavailable to provide necessary care for their child, and therefore can hire a non-parent IHSS provider when: 1) the parent is unavailable because of employment, with unavailability limited to the hours of employment for a parent working part-time; 2) the parent is enrolled in an educational or vocational training program, with unavailability limited to the time of instruction for parents enrolled only part-time; 3) the parent is physically or mentally unable to provide IHSS services; 4) the parent is unavailable because of ongoing medical, dental or other health-related treatment; or 5) when the parent is unavailable to perform shopping or errands essential for the family, search for employment or essential purposes related to care for the recipients siblings, which allows IHSS services from a non-parent provider for up to 8 hours per week.

A parent can be a paid IHSS provider for their minor child when the parent has left full time employment or is prevented from obtaining full-time employment because no other suitable provider is available.  If a parent is not employed full time for a reason other than the recipient child’s IHSS needs, that parent is not eligible to be a paid IHSS provider for the child.  The county can request employment verification but cannot require the parent to provide an affidavit or other documentation.  A county cannot deny using a parent provider based only on the lack of documentation of employment status. 

A parent who is on paid or unpaid leave or has been laid off for a reason other than the need to care for their child is not considered to have left employment to care for their child and is ineligible to be an IHSS provider for the child.

If a parent who is an IHSS provider for other recipients reaches the maximum number of IHSS work hours, the family can hire a non-parent IHSS provider or a second parent in the household for their child.

An undocumented parent is ineligible to be an IHSS provider.  In that situation, the family can hire a non-parent provider.

In a two-parent household, a parent is an eligible provider if the parent left full-time employment or is unable to obtain full-time employment because of the need to care for their child.  However, a non-parent provider cannot be paid to provide IHSS when one or more parents in the home are able and available.

For parents of a child IHSS recipient who are living separately but share custody, the county assesses the child at the primary parent’s home.  If one parent wants to be the child’s IHSS provider, the county determines if that parent is eligible to be a provider.  If both parents are available to be the child’s IHSS provider, hours are assigned based on the child’s needs when the child is in each parent’s home.

Foster parents are not subject to the IHSS parent provider rules.  However, adoptive parents are subject to the IHSS parent provider rules because they have a legal duty to care for the child upon adoption.

Determining whether a parent can be a paid IHSS provider and/or hire a non-parent provider is a separate and distinct inquiry from whether the child is eligible for IHSS.  The minor must be assessed for IHSS regardless of whether the parent is allowed to be the provider or hire another provider.  The case cannot be terminated if the county finds that there is not an eligible provider.  If the parent’s circumstances change, provider eligibility will be reevaluated.

Counties are required to inform parents about the rules regarding providers for minor recipients.  Counties must review their existing processes to verify providers are being properly enrolled.  Providers must also review impacted IHSS cases as soon as administratively possible but no later than the regularly scheduled reassessment.  (ACL 19-02, January 9, 2019.)

Third Party Assessment Process

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The California Department of Social Services has issued a clarification regarding its policy regarding referral for third party assessment when the county and the participant cannot agree on a welfare-to-work (WTW) assessment or a WTW plan.

If the participant does not agree with the results of their WTW assessment and does not reach an agreement with the county about their WTW plan, the county must refer the participant to an impartial third party for an independent assessment.  The county must refer for a third party assessment if the county and the participant do not agree on WTW assessment or the unsigned plan or a signed WTW plan in limited circumstances.

Prior to the appraisal, counties must provide an orientation that informs participants of their right to a third party assessment.  Participants must sign Rights and Responsibilities (WTW 1) and the Plan Activities form (WTW 2), each of which inform the participant of their right to a third party assessment.

After the plan is signed, the client has a once-in-a-lifetime 30 day grace period from the beginning of the WTW activity to request a change in the plan or reassignment to another activity.  The county must grant the request if another assignment is available, is consistent with the WTW plan, and the county determines the other activity will lead to employment.  The participant can request a third party assessment during the 30 day grace period.

The county must allow the participant three working days after signing the plan or amendments to the plan to request changes.  During the three working days after signing the plan, the participant can request a third party assessment.  If the participant expresses dissatisfaction with the plan in the first three working days, it will not trigger the use of the client’s once-in-a-lifetime 30 day grace period.  If the participant expresses dissatisfaction with the plan after three working days and has not used their once-in-a-lifetime 30 day grace period, the county can apply the 30 day grace period and grant a third party assessment.

The participant must adhere to the signed WTW plan if it is after the three working day or 30 day grace periods.  The county can revised a WTW plan at any time if it is in the best interest of the participant to do so.

The results of a third party assessment are binding and used by the client and the county to create an appropriate plan.  The participant is not entitled to a state hearing to challenge the assessment until a third party assessment has been performed. (ACIN I-03-19, January 17, 2019.)

Welfare-to-work sanction checklist

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CDSS has issued a checklist to determine non-compliance with welfare-to-work requirements. The checklist is designed to ensure appropriate steps are taken to resolve any instance on non-compliance.

Counties may revise the checklist to remain consistent with county-level guidance. However, any modifications should be inclusive of the steps and content provided in the checklist.

Use of the checklist is voluntary.  (ACIN I-84-18, January 14, 2019.)

EBT skimming and scams

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The California Department of Social Services has issued instructions regarding replacement of electronic benefits transfers (EBT) stolen by skimming or scams.  Skimming is using electronic equipment to capture the recipients’ EBT card and create a counterfeit card.  Scams involve deceiving or misleading a recipient to provide their account information and then using that information to create a counterfeit card.

Claims for electronic theft are made using the EBT 2259 form.  Recipients can contact either the EBT Customer Service Helpline or the county welfare department. 

In addition to the EBT 2259 form, recipients are required to file a police report unless there is good cause.  The police report number is required on the EBT 2259 form but a copy of the report is not required.  Good cause for not filing a police report includes that the police department does not accept reports of identity theft or financial fraud, the police department does not provide interpreter services for non-English speakers, there is a fee to file the police report, the police department does not provide disability accommodations, the recipient does not have transportation, and submitting a report in person would interfere with participation in welfare-to-work activities.

Counties review the EBT 2259 form and determine if it is complete and whether the allegations are consistent with typical scamming practices.  If the claim does not allege typical scamming practices it is considered for further review.  In addition, counties must verify that benefits for the recipient have not been restored because of scamming in the last 36 months. 

Recipients must file an electronic theft claim within 90 days.

Counties have 10 days to issue repayment unless there is a fraud investigation or over $2,000 is involved.  The reimbursement is not counted as income or property in the month received or the next month.  (ACL 18-148, December 31, 2018.)

Update: People reporting electronic theft no longer need to contact the electronic benefits transfer vendor prior to submitting the form EBT 2259 to the county.  People reporting electronic theft must contact the county within 10 days of the loss, and file the EBT 2259 form with the county within 90 days of the loss. People no longer are required to file a police report to submit the form EBT 2259 and get replacement benefits.  (ACL 23-13, January 27, 2023.)