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.)

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.)

The California Department of Social Services (CDSS) has issued instructions regarding the implementation of AB 959, also known as the Lesbian, Gay, Bisexual, and Transgender Disparities Reduction Act in the In-Home Supportive Services Program.

As of July 1, 2018. CDSS, Department of Health Care Services, Department of Public Health, and the California Department of Aging must collect information on individuals’ sexual orientation and gender identity. This information will be used to coordinate care, improve services, and understand client diversity to guide funding and policy decisions.

The State will collect this information on the SOC 295, the application for In-home Supportive Services. While counties must ask for this information, applicants are not required to respond. Counties will not be required to collect this information from current IHSS recipients, and the information that is collected will not be connected to the individual providing the response.

Several other changes have also been made the SOC 295 Application form:

• The Household Information section now includes all people living in the home, not just family members. This section has been modified to include a non-relatives checkbox.
• The Ethnic and Language Information Section now includes two separate questions, one about an individual’s preferred language to read, and one about their preferred language to speak. The list of ethnic codes now includes the options of “Other” and “Mixed Ethnicity” as well.
• The Communication Accommodations Section now includes the option of the Electronic Timesheet System.

CDSS is responsible for compiling sexual orientation and gender identity information and giving it to the legislature.  (ACL 18-77, June 27, 2018.)

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.)