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.)

The California Department of Social Services (CDSS) has issued instructions about recovery of overpayments in the In Home Supportive Service Program (IHSS).  An overpayment includes any payments to a recipient to purchase IHSS services in an amount to which the recipient was not entitled.  Counties must recover the full amount of IHSS overpayments.  However, prior to initiating overpayment recovery, counties must confirm there has been a conviction for fraud against the IHSS program.  Once a fraud conviction has been established, counties can proceed with overpayment recovery.

CDSS has issued two new notices of action, NA 1284 for recipient fraud conviction and NA 1283 for advance pay recipient fraud conviction.  (ACL 19-81, August 8, 2019.)

The California Department of Social Services (CDSS) has issued instructions implementing AB 1811 Section 34 which establishes the county, public authority or nonprofit consortium as the employer of record for Waiver Personal Care Services providers for purposes of good faith negotiations regarding wages, health benefits and other conditions.

Effective July 1, 2019, Waiver Personal Care Services providers have the same collective bargaining rights, wages, health benefits and other conditions as In Home Supportive Services providers in their respective counties.  Waiver Personal Care Services providers are now eligible for health benefits administered by the county and are eligible to become union members.  (ACL 19-61, June 28, 2019.)

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.)

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.)