Exemptions to IHSS overtime rules

CDSS has issued instructions for exemptions from the new IHSS overtime rules. Instructions about these rules are in CDSS 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 for 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 will issue another ACL 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).

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.