IHSS provider wage rules

CDSS has issued instructions about implementing IHSS overtime, travel time and waiting time rules effective February 1, 2016. These rules will be in effect because of the decision in Home Care Association of America v. Weil, 799 F.3d 1084 (D.C. Cir. 2015) which upheld the United States Department of Labor regulations applying the Fair Labor Standards Act to domestic workers who work for third parties. Please note that this may change because a petition for certiorari is pending in the United States Supreme Court.

Providers will be entitled to overtime (time and one-half) for time worked over 40 hours per week. A single provider for a single recipient will be able work the maximum number of hours authorized for the recipient. The weekly number of authorized hours will be the number of monthly hours divided by four. For multiple providers for a single recipient, the weekly number of hours can be divided in any manner among the providers. For a single provider working for multiple recipients, the provider will be limited to working a total of 66 hours per week. Counties will be sending informing notices that include the weekly authorized hours.

The recipient may authorize the provider to work more than the maximum weekly hours without county approval if 1) the adjustment does not result in the provider working more than a 40 hour week when the recipient is authorized for 40 hours or less per week, and 2) does not result in the provider receiving more overtime hours than normally worked during the month, and 3) does not result in the provider working more than 66 hours in a week for multiple providers.

If the recipient needs the provider to work more than the maximum weekly hours and the work performed does not meet these criteria, the recipient must contact the county to request an exception to allow the provider to work additional overtime hours. Counties should grant exceptions when the additional hours are 1) necessary to meet an unanticipated need, 2) the additional hours are related to an immediate need that cannot be postponed until a back-up provider arrives and 3) the additional time is needed to ensure the recipient’s health or safety. The recipient will be sent a notice granting or denying the exception request.

The county can adjust weekly hours when it becomes aware of a known or recurring or periodic need that requires an adjustment in hours to cover. The county will send written notice of such an adjustment.

Providers who work for multiple recipients will be entitled to time traveling between the two recipients up to seven hours per week. Travel time does not count toward the maximum 66 hours per week for providers working for multiple recipients.

Providers will be entitled to on duty waiting time, that is time not actively performing services but the provider cannot effectively use the time for their own purposes because the time is unpredictable and of unknown duration. Providers will not be entitled to waiting time if the provider is informed in advance that they will be relieved of performing work duties for a specified period of time during which they can engage in personal business.

Providers must submit a new Provider Enrollment Agreement (SOC 846) no later than April 15, 2016 or be terminated from the program effective May 1, 2016. If the Agreement is submitted by June 1, 2016, the provider can be retroactively reinstated. If the Agreement is submitted after June 1, 2016, the provider can be reinstated but will not receive back pay.

CDSS has created the IHSS Program Recipient and Provider Workweek Agreement forms to assist providers who assist multiple recipients in apportioning their hours. Counties must have a process for assisting with these forms.

CDSS has also created a penalty system for providers who do not follow the overtime rules that will become effective on May 1, 2016. CDSS will issue another All County Letter discussing the penalty system. ACL 16-01 (January 7, 2016).

2015 Child Support Legislation

DCSS has issued information about new child support legislation. Two of these bills are noteworthy. AB 610 authorizes administrative suspension of child support orders due against incarcerated or other involuntarily institutionalized obligors and adjustment of arrears to zero for these obligors if there is no objection from either parent. If there is an objection, the issue is heard in court. This bill is effective October 9, 2016

SB 646 adopts the Uniform Interstate Family Support Act of 2008 (UIFSA) as California law effective January 1, 2016. This is required by federal law. SB 646 also adopts the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance as California law. The Hague Convention establishes uniform procedures for processing international child support cases. CSSIN 15-01 (12/22/15).

2016 CalWORKs IRT

The CalWORKs Income Reporting Threshold (IRT) is the income amount which CalWORKs recipients are required to report mid-period. The CalWORKS IRT is the lower of 1) 55% of the Federal Poverty Level plus the amount of income used to calculate the assistance unit’s current grant or 2) the amount of income likely to make the assistance unit ineligible for CalWORKs.

CDSS issued a chart of the IRT levels effective October 1, 2015. Counties are required to notify each assistance unit of their new IRT level.

CDSS also reminded counties that, upon reporting of income over the IRT, the county must determine if that income is reasonably anticipated to continue. If the income over IRT is reasonably anticipated to continue, the county recalculates the grant amount based on the new reasonably anticipated income. ACL 15-75 (10/1/15).

CalWORKs learning disability screening

CDSS issued new forms for learning disability screening and waiver of learning disability screening and evaluation. CDSS also issued rules about using these forms. Counties must offer learning disability screening both verbally and in writing. Counties must provide all information about learning disability screening before discussing waiver and cannot offer or require WTW participants to sign a waiver in lieu of offering learning disability screening or referral for evaluation.

Counties must provide learning disability screening to all WTW participants who request it. If screening is not available in the participant’s primary language, the participant may request referral for an evaluation.

If the participant has a previous learning disability evaluation, the county must decide whether to accept it. If the county accepts the prior evaluation, the participant signs a waiver of a new screening. If the county does not accept it, the county must offer a new screening, and the participant can accept the new screening, waive screening, or request a hearing to challenge the county’s decision not to accept the prior evaluation. ACL 15-101 (12/18/15).

CalWORKs, CalFresh and EITC

CDSS issued guidance about treatment of federal and state Earned Income Tax Credit (EITC) for purposes of eligibility for CalWORKs and CalFresh. For both programs, both federal and state EITC is permanently excluded as income and does not count as a resource for 12 months. CDSS strongly encourages counties to notify recipients.

CDSS also describes eligbility for both federal EITC and the new California EITC that begins for the 2015 tax year. ACL 15-87 (11/2/15).

Free copies of birth certificates for homeless persons

AB 1733, which became effective on July 1, 2015, requires the registrar or county recorder to provide free certified copies of birth certificates to homeless persons. County Welfare Departments (CWDs) are considered homeless services providers under the statute. This means that CWDs are required to assist homeless clients who need to get a birth certificate by completing an affidavit that the client is homeless. The form for the affidavit is part of California Department of Public Health ACL 15-05, which is attached to CDSS’ instructions. This duty is in addition to the CWDs duty to cover fees if necessary to obtain information or verification to receive benefits. ACIN I-90-15 (11/25/15).