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.)

CDSS has issued instructions implementing AB 1021 regarding IHSS applications.  Counties must facilitate accepting applications by telephone, fax, in-person or email if the county is capable of accepting electronic applications.  Counties must assist IHSS applicants and facilitate the application process which includes informing applicants of the various methods for submitting applications.

Counties should establish secure drop boxes for applications.  Counties can accept applications face-to-face instead of providing a drop box.  Counties must designate staff to receive fax submissions daily.

Counties are required to provide IHSS applicants with a confirmation number upon receipt of the application.  The confirmation number can be provided verbally before the end of the telephone call in which the application is taken or in writing when the application is entered into the computer system.  Counties must communicate the confirmation number timely regardless of how the application was submitted.  (ACL 18-30, March 16, 2018.)

CDSS has issued instructions implementing SB 3 regarding paid sick leave for IHSS providers.  Beginning July 1, 2018, IHSS providers who work 100 hours will be eligible for 8 hours of paid sick leave per year. The sick leave time will increase to 16 hours per year on July 1, 2020 and 24 hours per year on July 1, 2022.

Providers will be able to use paid accrued sick leave after working an additional 200 hours or 60 calendar days from the date when the provider earned the sick leave, whichever is first.

Providers will lose any used sick leave at the end of each fiscal year.  Accrued sick leave will not be paid at the end of employment.  However, if the provider is rehired as an IHSS provider within a year, previously accrued sick leave will be reinstated.

IHSS providers can use accrued sick leave for diagnosis, care or treatment of an existing condition or preventative care for themselves or their family, or if the provider is a victim of domestic violence, sexual assault or stalking.

IHSS providers can request paid sick leave by completing the SOC 2302 IHSS Program Provider Sick Leave Request Form.  Both the recipient and the provider sign the form.  The provider submits the form to the CMIPS vendor, Enterprise Services.  The minimum increment for paid sick leave is 1 hour, and additional sick leave may be used in 30 minute increments.  Providers should give 48 hours notice to the recipient for planned usage of paid sick leave and immediate notice or at least two hours prior to the start of the work day for emergencies.

CDSS will add the amount of available sick leave to each provider’s pay warrant.  Providers will receive a supplemental check which will include the wages received for the sick time used.  (ACL 18-01, January 9, 2018.)

The California Department of Social Services has issued instructions about counties asking CDSS to remove an IHSS provider overtime violation when the county exceeds the 10 day dispute processing timeframe.

To dispute an overtime violation, an IHSS provider must submit the violation dispute form within 10 calendar days of the date on the violation notice.  The county enters the date the violation dispute form is received into CMIPS within 10 business days to have the violation considered for removal.

If the county does not enter the violation dispute into CMIPS within 10 business days, the system prevents entering the violation dispute.  In that event a county can request that CDSS remove the violation if the delayed processing is because of 1) a circumstance beyond the provider’s control, 2) the provider file the violation dispute timely but the county did not timely enter the dispute into CMIPS and 3) the violation would have been removed had the dispute been entered into CMIPS timely.

Counties must submit CDSS review requests within 45 days of the violation notice date.  Only counties can initiate this review process.  (ACL 17-105, October 19, 2017.)

CDSS has issued instructions regarding social worker assessments of IHSS eligibility.  Social workers must now use hourly task guidelines instead of time per task in determining eligibility for and number of hours in 12 program service areas.  The other 13 program service areas have time guidelines without specific ranges for each functional rank.

Counties must continue to conduct individualized needs assessments and to assess needs based in part on the individual’s functional level of impairment.  The social worker must also explore any special needs or other circumstances that assist in determining time needed inside or outside the associated time range for the functional level of impairment.

Exceptions to the hourly task guidelines are only allowed when necessary to allow the applicant or recipient to remain safely in their home.  The rules for domestic and related services, alternative services and age appropriate guidelines are unchanged.

CDSS included an optional fact sheet that social workers can give to IHSS clients, new annotated assessment criteria, and a new IHSS social worker handbook that includes new model assessment forms.  (ACIN I-82-17, December 5, 2017.)

CDSS has issued instructions about Notices of Action for determinations about In Home Supportive Services Protective Supervision.  CDSS developed Notice of Action messages to provide additional explanation for a Protective Supervision determination.  The purpose of the messages is to increase understanding of the basis for a Protective Supervision determination.  County social workers can select the message to be included in the Notice of Action.

The messages include explanations for no risk of injury, hazard or accident; individual is self-directing, not mentally impaired or mentally ill; need is caused by a medical condition and supervision required is medical; no eligibility for anticipation of a medical emergency; no eligibility to prevent or control aggressive or anti-social behavior; no eligibility to guard against deliberate self-harm; and no need for 24 hour supervision.  (ACL 17-110, October 31, 2017.)