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State Capitol Update:
SECOND OF TWO EXEMPTIONS TO IHSS & WAIVER PERSONAL CARE SERVICES OVERTIME CAP RELEASED IN NOTICE TO COUNTIES BY CALIFORNIA DEPARTMENT OF SOCIAL SERVICES
SACRAMENTO, CA [BY MARTY OMOTO, CDCAN - LAST UPDATED 04/05/2016 12:20 PM] - The California Department of Social Services, the state agency that oversees statewide the In-Home Supportive Services (IHSS) program, released April 1st a new notice to the counties - called an "All County Letter" (All County Letter No. 16-22) - with information and instructions regarding the second of two "extraordinary circumstances exemptions" to overtime rules for persons who are IHSS providers who work for two or more people who receive IHSS, under certain specific conditions.
As previously reported, the US Department of Labor regulations requiring travel and wait time pay and also overtime for previously exempted home care workers across the nation - including in California, IHSS, Waiver Personal Care Services workers, and regional center funded home care services (Supported Living Services, In-Home Respite Services and Personal Assistance Services) - were slated to go into effect January 1, 2015. That implementation however was halted by a federal district court order in late December 2014 and early January 2015, which was overturned by a federal appeals court ruling handed down in August 2015. The federal regulations went into effect in the fall of 2015.
The latest county notice also includes clarifications regarding the first "extraordinary circumstance exemption" (Exemption 1), in addition to providing the information and instructions for Exemption 2 for a IHSS worker who works for two or more persons who are IHSS recipients and whose circumstances put them at serious risk of placement in an out-of-home setting.
The California Department of Social Services said in the county notice that if an IHSS provider (worker), working for two or more persons who receive IHSS, is granted either Exemption 1 or 2, that provider will be permitted to work up to a total of 12 hours a day, up to 360 hours per month COMBINED for the people who are IHSS recipients that they provide services for - not to exceed each of those person's monthly authorized hours.
The California Department of Social Services, in the latest notice to the counties, said also that coordination and implementation of the procedures regarding these two exemptions will be developed by the California Department of Health Care Services and the California Department of Social Services so that the it will also apply to persons who receive or work as providers through the Waiver Personal Care Services under the In-Home Operations Waiver (IHO Waiver) and the Nursing Facility/Acute Hospital Transition and Diversion (NF/AH Waiver.
The California Department of Social Services issued earlier on January 21, 2016, a "All County Letter" (All County Letter No. 16-07), that provided information and instructions regarding the first of the two "extraordinary circumstances exemptions" - called "Exemption 1" - dealing with IHSS workers who are live-in family members who provide IHSS to two or more family members as specified.
Though "All County Letters" by the California Department of Social Services are directed to county welfare directors and all county IHSS program managers, the notices can also provide important information to people who are IHSS recipients, workers (providers), advocates and to community-based organizations - including regional centers - who serve people with disabilities, including people with developmental disabilities.
ADVOCATES APPLAUD STATE FOR EXEMPTIONS - BUT RAISE MAJOR CONCERNS & NEED FOR ADDITIONAL EXCEPTIONS
While the two exemptions were welcomed by people with disabilities (including developmental and those with mental health needs), and seniors and others who receive IHSS, families, workers, advocates and others, many advocates continued to push and argue for other exemptions that they say are critically needed to provide for quality and continuity of care. Some of the advocates were part of a small stakeholder group, including representatives from the counties, that provided input and suggestions on Exemption 2.
Similar major concerns regarding to allow for exceptions or exemptions have been raised by advocates regarding Supported Living Services (SLS) funded through the 21 non-profit regional centers under the Department of Developmental Services. Supported Living Services provides supports and services for persons with developmental disabilities in and outside their home by community-based organizations and individuals funded through the 21 non-profit regional centers, in addition to receiving, if eligible, for In-Home Supportive Services.
The Governor proposed as part of the 2015-2015 State Budget a 5.82% rate increase to all Supported Living Service organizations to help off-set costs related to the implementation of overtime for previously exempted home care workers. The rate increase however - like overtime pay for IHSS and Waiver Personal Care Service workers - was delayed due to a federal district court order that halted overtime across the nation in late December 2014 and early January 2015. That order was overturned by a federal appeals court in August 2015, and the federal overtime regulations went into effect in the fall of 2015.
The rate increase for Supported Living Service agencies went into effect December 1, 2015 - and went to all agencies regardless whether or not they had overtime costs. Overtime pay and provisions of overtime that limited work week hours to no more than 66 hours per IHSS worker (regardless of how many IHSS recipients that worker provided services to) went into effect February 1, 2016. Exceptions to the 66 hour weekly cap were authorized by the California Department of Social Services as Exemption 1 or Exemption 2 (which also applies to Waiver Personal Care Services workers and recipients)
As previously reported, additional exceptions or exemptions for specific persons, based on a person centered plan, who receive IHSS or Waiver Personal Care Services, and also persons who receive regional center funded Supported Living Services - and targeted funding for that purpose - have been pushed by Disability Rights California (DRC), and also by CDCAN's California Person Centered Advocacy Partnership at recent budget subcommittee hearings and last year prior to the release of the Governor's proposed 2016-2017 State Budget.
REQUIREMENTS TO QUALIFY FOR EITHER EXEMPTION 1 OR 2
EXEMPTION 2
In order to qualify for Exemption 2, the person who is the IHSS provider (worker) works for must meet at least ONE of the following conditions (the IHSS provider under Exemption 2 does not need to live in the same home as the persons who are IHSS recipients that the provider works for to qualify for Exemption 2):
- The person who is an IHSS recipient must have complex medical and/or behavioral needs that must be met by a IHSS provider (worker) who lives in the same home as the IHSS recipient - OR
- The person who is an IHSS recipient must live in a rural or remote area where available IHSS providers are limited and as a result the IHSS recipient is unable to hire another IHSS provider - OR
- The person who is an IHSS recipient is unable to hire a IHSS provider who speaks his/her same language I order to direct his/her own care
Evaluation of the cases to determine whether either Exemption 1 or 2 will be granted or denied will be conducted by the California Department of Social Services and the counties.
In addition, the April 1st All County Letter No. 16-22 also provided clarification to Exemption 1 that was outlined in All County Letter No. 16-07:
EXEMPTION 1
As stated in All County Letter 16-07, the Live-In Family Care Provider Overtime Exemption (Exemption 1) allows IHSS live-in providers, who work for two or more persons who are IHSS recipients, and who are related to those two or more recipients as a parent, step-parent, adoptive parent, grandparent, legal guardian or conservator, to work above the maximum of 66 hours in a work week.
In order to qualify for exemption 1, a person who is a IHSS provider (worker) must have met the following requirements on or before January 31, 2016 in order to qualify for Exemption 1and be allowed to work a total of 12 hours a day, up to 360 hours per month COMBINED for the IHSS recipient they provide services for, not to exceed each IHSS recipient's monthly authorized hours:
- The person who is the IHSS provider must work for two more people who are IHSS recipients; AND
- The person who is the IHSS provider lives in the same home as all the people who are IHSS recipients for whom he/she provides services; AND
- The person who is the IHSS provider is related to all of the people who are IHSS recipients for whom he/she provides services, as his/her parent, step-parent, adoptive parent, grandparent, legal guardian or conservator.
LINKS FOR MORE INFORMATION ABOUT EXEMPTIONS 1 OR 2 AND OVERTIME PROVISIONS FOR IHSS & WAIVER PERSONAL CARE SERVICES
ALL COUNTY LETTER NO. 16-22 DATED APR 01, 2016 ON IHSS OVERTIME EXEMPTION 2 & CLARIFICATIONON EXEMPTION 1 (DEPARTMENT OF SOCIAL SERVICES) - PDF DOCUMENT COPY (16 PAGES):
http://www.cdss.ca.gov/lettersnotices/EntRes/getinfo/acl/2016/16-22.pdf
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CDCAN YOU TUBE VIDEOS
A CDCAN (Marty Omoto, family member and advocate) youtube channel was set up and has several videos dealing with current - and previous state budget issues, disability and senior rights, and advocacy.
To see the current videos, including March 2014 San Andreas Regional Center Aptos Legislative Breakfast, January 2014 panel discussion on services for adults with autism spectrum and related disorders in Palo Alto, and older videos including video of April 2003 march of over 3,000 people with developmental disabilities, families, providers, regional centers and others from the Sacramento Convention Center to the State Capitol (to attend and testify at budget hearing on proposed massive permanent cuts to regional center funded services, go to the CDCAN (Marty Omoto) Channel at:
https://www.youtube.com/channel/UCEySEyhnr9LQRiCe-F7ELhg
More videos - including new current videos (an interview with longtime advocate Maggie Dee Dowling is planned, among others) - plus archive videos of past events - will be posted soon.
APRIL 5, 2016 - TUESDAY AFTERNOON
PLEASE CONSIDER HELPING AND SUPPORTING THE CONTINUING WORK OF CDCAN - YOUR HELP IS NEEDED!
CDCAN Townhall Telemeetings, CDCAN Reports and Alerts and other activities cannot continue without YOUR help. To continue the CDCAN website and the CDCAN Reports and Alerts sent out and read by over 65,000 people and organizations, policy makers and media across the State, and to continue and resume CDCAN Townhall Telemeetings, trainings and other events, please send your contribution/donation (please make check payable to "CDCAN" or "California Disability Community Action Network" and mail to:
CDCAN
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Many, many thanks to all the organizations and individuals for their continued support that make these reports and other CDCAN efforts possible!
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California IHSS Consumer Alliance
735 P Street Unit C4
Eureka, CA 95501
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