Revised regulations on parents as IHSS providers for children under age 18

Following a decision of the CDSS director that invalidated CDSS’ prior regulations, CDSS issued revised regulations about eligibility for parents to be IHSS providers for their children. The revised regulations are at MPP Sections 30-763.44 and .45.

The revised regulation continues the rule that a child under age 18 is eligible for IHSS when the no parent is available to provide IHSS, which is defined as when the parent(s) is employed or enrolled in an education or vocational training program, or physically or mentally unable to provide IHSS services. A parent is considered unavailable only if unavailability occurs during the time the child must receive a specific service.

In addition, IHSS is available from a non-parent provider for up to 8 hours per week when parents are unavailable in order to do shopping or errands necessary for the family, to search for employment or to care for the recipient’s minor siblings. The regulations continue the rule that a parent who is required to leave or cannot obtain full-time employment because of the need to provide care for a child can be an eligible IHSS provider. The regulations also continue the rule that a parent cannot be the IHSS provider when a second parent who is in the home is available to provide care. The new regulations clarify that the restrictions who can be a provider for children under age 18 apply only to natural or adoptive parents. CDSS also included several questions and answers about the revised regulations.
ACL 15-45 (5/1/15).

IHSS 7% reduction restored

Effective July 1, 2015, the IHSS 7% reduction is restored. The 7% reduction was part of the settlement in the Oster v. Ligthbourne litigation and was codified in Welfare and Institutions Code Sections 12301.01 and 12031.02. In SB 97, (Budget Act, Section 57, Part 6) the legislature suspended the reduction for one year, from July 1, 2015 to June 30, 2016. In a special legislative session later this year, the legislature will attempt to determine funding sources for making the restoration of the 7% reduction permanent.

Notices of the possibility that the 7% reduction would be restored were scheduled to go out in mid-June. The notices say that restoration was a possibility because the restoration legislation had not yet passed.

The IHSS computer system called CMIPS II is supposed to automatically create a new IHSS authorization with the restored hours added, and to automatically updated provider hours. The ACL warns that there may be an issue assigning the hours when a recipient has multiple providers and if the recipient wants hours divided differently between multiple providers, the recipient needs to file a SOC 838 form with their county.

ACL 15-57

CDSS issues new instructions about Protective Supervision

In this letter, CDSS states several policies about several aspects of eligibility for In Home Supportive Services Protective Supervision, which is 24 hour supervision to safeguard against injury, hazard or accident. (MPP § 30-757.17.) These policies include:

  • A person must be both mentally ill and non-selfdirecting to be eligible for Protective Supervision. CDSS states it will amend MPP Section 30-757.17 to reflect this policy.
  • A person must be physically able to harm themselves to be eligible for Protective Supervision. This can include observation of persons who are bedridden but who are able to harm themselves. CDSS gives the example of a bedridden person who can pull out a G-tube.
  • While Protective Supervision is not available to guard against deliberate self-destructive behavior, a recipient who engages in deliberate self-destructive behavior and other behavior that is a basis for Protective Supervision such as wandering can be eligible for Protective Supervision to prevent the wandering.
  • Environmental modifications such as removing knobs from stoves or adding safety latches can eliminate the need for Protective Supervision.
  • Fluctuating or episodic behavior can be a basis for Protective Supervision if the behavior is unpredictable. However, if the behavior is predictable, IHSS should only be authorized for the time when the behavior occurs.
  • Leaving a recipient for fixed short periods of time is not, by itself, a reason to deny Protective Supervision
  • Actual injury is not required for Protective Supervision eligibility. A history of a propensity for the recipient to place themselves in danger is sufficient for Protective Supervision eligibility.

The letter also restates criteria for assessing children for eligibility for Protective Supervision. ACL 15-25.

Instructions to determine IHSS eligibility for “non-disabled” people with MAGI Medi-Cal

Under the ACA, 19 to 64 year olds who are neither disabled nor blind can be eligible for Medi-Cal if if their modified adjusted gross income (MAGI) is below a certain amount.  There are several MAGI aid codes, many of which indicate eligibility for full-scope Medi-Cal with federal financial participation (FFP).  For such individuals who have not yet been determined to be disabled by CDSS or the Social Security Administration, they may still receive IHSS if they (1) meet the criteria for disability under MPP Section 30-780.2(b), and (2) have an assessed need for IHSS.  ACL 14-67.

Federal judge halts implementation of new IHSS overtime rules

On January 14, 2015, Judge Richard Leon of the U.S. District Court, District of Columbia issued a ruling vacating the U.S. Department of Labor’s revised companionship services definition scheduled to take effect the following day. In response, CDSS has postponed changes related to overtime, travel time and wait time pay for all IHSS providers. The forms and notices previously issued to implement the changes will not be used. Notices were to issue to all IHSS providers and recipients informing them 2014 hours allocations will remain in effect and the planned 61-hour limit will not take effect. The Department of Labor has appealed Judge Leon’s ruling.  ACL 15-10.

IHSS provider enrollment orientation rules change next month

Beginning April 1, 2015, prospective IHSS providers must attend an in-person provider enrollment orientation that includes training and materials detailing the applicable federal and state minimum wage, overtime, travel time and wait time laws. Counties must provide the orientation in English and any language spoken by five percent or more non-English speakers in the county. The county’s recognized employee organization must be permitted to make a presentation at the orientation. These changes are pursuant to SB 878. In addition, prospective providers may no longer use printouts from the Social Security Administration as original documentation of identity. However, Social Security cards, state driver’s licenses or identification cards and tribal identification cards are still accepted. ACL 14-102.