Extraordinary circumstances exception to IHSS provider workweek and travel time limitations

The California Department of Social Services has issued instructions about the extraordinary circumstances exception to IHSS provider workweek and travel time limitations.  The extraordinary circumstances exception is available to providers who work for two or more recipients and the recipients meet at least one of the following: 1) have complex medical and/or behavioral needs that must be met by a provider who lives in the same home as the recipient; 2) live in a rural or remote area where providers are limited and as a result the recipient cannot hire another provider or 3) is unable to hire a provider who speaks their language in order to direct their care.

The complex medical or behavioral needs exception applies only when the recipient’s physical or mental health would be harmed to the point of risking out of home placement if services are provided by anyone other than the primary IHSS provider.  Counties will review this exception every 12 months.

The rural or remote location exception applies to areas that are outside of urban areas, defined as population over 50,000 people and outside of urban clusters, which is defined as population centers of between 2,500 and 50,000 people.  The county is required to search for alternative providers, and must review this exception every six months.

The language barrier exception only applies when the inability to hire a provider who speaks the recipients language results in a consistent barrier to the recipient directing their own care that cannot be overcome.  CDSS states that tasks that do not require direction by the recipient such as domestic or related services or some personal care services which only require some direction from the recipient, can be performed by a provider who does not speak the recipient’s language.  The county is required to search for alternative providers, and must review this exception every six months.

CDSS also clarified the live-in family care provider exception.  This exception can apply people who were live-in care providers before January 31, 2016 if the exception is needed after that date because of a change in the recipient’s condition.  ACL 16-22 (April 1, 2016).

Violations for exceeding IHSS provider workweek and travel time limitations

The California Department of Social Services has issued instructions about violations for IHSS providers who exceed workweek and travel time limitations.  Those limitations are described in ACL 16-01.

A violation of the workweek and travel time limitations occurs when: 1) a provider works more than 40 hours in a workweek without county approval and the recipient’s receives less than 40 hours; 2) a provider works more hours in a workweek than the recipient’s maximum weekly hours causing the provider to work more overtime hours in a month than normal without county approval; 3) a provider works more than 66 hours in a week when working for multiple recipients and 4) a provider claims more than 7 hours of travel in a workweek.

The first violation causes a written warning.  The second violation is a warning and a one-time opportunity to complete voluntary instructional materials.  If the materials are completed within 14 days, the second violation is rescinded.  The next violation would then be considered the second violation and will not be rescinded.  The materials are attached to ACL 16-44.

The third violation causes a 90 day suspension of the IHSS provider’s eligibility to work.  The fourth violation causes a one year suspension of the IHSS provider’s eligibility to work.

If a provider has no violations for a year, one violation is rescinded.

For first and second violations, providers can request a county administrative review of the violation, followed by an administrative hearing.  For third and fourth violation, providers can request a county administrative review, then a CDSS administrative review, then an administrative hearing.  ACL 16-36 (April 21, 2016).

Submission of IHSS Provider Enrollment Agreement

The California Department of Social Services previously stated in ACL 16-01 that In Home Supportive Services providers were required to submit the Provider Enrollment Agreement (SOC 846) by April 15, 2016 or be terminated on May 1, 2016.

CDSS changed its policy so that providers who did not submit the SOC 846 by April 15, 2016 will not be automatically terminated.  The SOC 846 remains a required form that must be submitted and counties must assist in providers in completing the form.  ACL 16-27 (April 14, 2016).

Live-In family care exemption to IHSS workweek rules

CDSS has issued instructions for the live-in family care exemption from the new IHSS overtime rules. Instructions about the workweek rules are in ACL 16-01. There are two exemptions from these rules for IHSS providers. An IHSS provider who, on or before January 31, 2016, is providing services to two or more live-in family member, can work up to 12 hours per day or 90 hours per week, not to exceed 360 hours per month. The criteria for this exemption are: 1) The provider works for two or more IHSS recipients, 2) The provider lives in the same home as all of the IHSS recipients for whom services are provided and 3) The provider is related to all of the IHSS recipients for whom services are provided as parent, adoptive parent, step-parent, grandparent or legal guardian. This exemption does not apply to providers who do not meet these criteria prior to February 1, 2016.

This exemption does not change the rules regarding minor IHSS recipients living in two parent households. However, a non-parent provider can provide IHSS for any remaining hours that cannot be provided by the parent provider who is limited to 360 hours per month.

There is also an exemption from the workweek rules extraordinary circumstances which place the IHSS recipient at imminent risk of institutionalization. A potential example is where no other caregiver who speaks the recipients primary language can be located in the community. These exemptions will only be granted on a case by case basis. CDSS issued ACL 16-22 with criteria and requirements for the extraordinary circumstances exemption.  ACL 16-07 (January 21, 2016).

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).

IHSS provider overtime rules

CDSS has issued guidance implementing limitations on overtime and travel for IHSS providers to be effective February 1, 2016.

Welfare and Institutions Code Section 12300.4 sets a specified number of hours per week an IHSS provider can work and forbids overtime beyond the specified hours. Section 12300.4 also limits travel for providing services to multiple recipients to seven hours per week. Recipients will need to hire multiple providers if their hours are greater than the specified maximum. CDSS will be mailing informational notices and forms to IHSS recipients and providers.

Counties will be responsible for implementing and enforcing the overtime and travel limitations.  ACL 15-97 (12/1/15).