DPSS ePolicy

Converted document, no content change. 

Revision of existing policy and/or form(s).

What changed?

Revises procedures per California Department of Social Services (CDSS) clarification that In-Home Supportive Services (IHSS) providers are eligible to receive travel time payments under the Fair Labor Standards Act (FLSA) from their eligibility date, and when applicable, County staff shall backdate the start date of the travel claim segment up to the provider’s eligibility date, on or after February 1, 2016.

This document also releases the revised SOC 2255, IHSS Program Provider Workweek and Travel Time Agreement, (3/19), where minor changes were made to include clarifying language and areas where the IHSS provider must enter the date he/she began travelling from one recipient’s location to another recipient’s location on the same day.

Note: The detailed procedures for exemption and violation processing are located under the separate titles of Fair Labor Standards Act Exemption Process and Fair Labor Standards Act Violation Process.

Changes are shown highlighted in gray throughout the document.

Effective February 1, 2016, IHSS providers:

1. Receive payment for:
   
   
   1. Hours worked over 40 hours in a workweek as overtime;
      
      
   2. Time needed for traveling directly from one recipient’s home to another recipient’s home on the same day to provide authorized IHSS services;
      
      
   3. Wait time at medical appointments, when Accompaniment to Medical Appointments has been authorized for the recipient; and
      
      
   4. Attending mandatory training (post-employment).
       
2. Are limited to working a maximum of 66 hours per workweek when he/she works for multiple recipients and up to a maximum of 70 hours and 45 minutes if he/she works for only one recipient;
   
   
3. May exceed workweek limitations as stated above and work up to a maximum of 90 hours per workweek, if granted either a Live-In Family Care Exemption (Exemption 1), or an Extraordinary Circumstances Exemption (Exemption 2);
   
   
4. Are prohibited from working more than the recipient’s weekly authorized hours without County authorization; and
   
   
5. Shall receive a violation whenever he/she exceeds the maximum workweek limits of OT and/or Travel Time hours.

Effective June 1, 2018, County staff assumed responsibility for the evaluation, determination, and processing of provider eligibility for Exemption 2 requests. (See Fair Labor Standards Act Exemption Process.)

Effective January 1, 2015, the United States Department of Labor (DOL) extended federal OT and minimum wage protections to home care and domestic workers. The DOL determined that the State is a third-party employer for IHSS providers and as such, is subject to the minimum wage and OT rule. Due to litigation, the implementation date was delayed to November 12, 2015.

To comply with the federal law, the CDSS developed new IHSS FLSA regulations, and implemented FLSA in the IHSS Program effective February 1, 2016.

On June 27, 2017, Senate Bill (SB) 89 was passed to formally establish Exemption 1 and Exemption 2. These exemptions allow providers who work for multiple recipients to work more than the regulated 66-hour workweek and up to 90 hours per workweek.
 

CDSS requires the collection of the following forms:

SOC 426A (1/16), IHSS Program Recipient Designation of Provider

1. Must be completed by all recipients to designate a new provider.
   
   
2. Must be completed by recipients when there is a change in provider or a provider is added.
   
   
3. Scan per existing Electronic Document Management System (EDMS) procedures.
   

 SOC 846 (11/15), IHSS Program Provider Enrollment Agreement

1. Must be signed by all enrolled IHSS providers.
   
   
2. Scan per existing EDMS procedures.

 SOC 2255 (03/19), IHSS Program Provider Workweek and Travel Time Agreement

1. Must be completed and signed by all enrolled IHSS providers who work for more than one recipient.
   
   
2. Must list how many authorized hours the provider will work for each recipient each workweek.
   
   
3. Must include travel start date.
   
   
4. Must be submitted and processed to claim travel time.
   
   
5. Scan per existing EDMS procedures.

SOC 2256 (11/15), IHSS Program Recipient and Provider Workweek Agreement

1. Must be completed and signed by all recipients who employ more than one provider.
   
   
2. Must be signed by all providers employed by the recipient.
   
   
3. Must list how many authorized hours each provider will work for the recipient each workweek.
   
   
4. Scan per existing EDMS procedures.

SOC 2257 (12/17), IHSS Program Notice to Provider of Violation for Exceeding Workweek and/or Travel Time Limits

1. Generated to all providers who incur a violation for exceeding workweek and/or travel time limits.
   
   
2. Mailed to providers with the SOC 2272, IHSS Program Notice to Provider of Right to Dispute Violation for Exceeding Workweek and/or Travel Time Limits.

SOC 2257A (12/17), IHSS Program Notice to Recipient of Provider’s Violation for Exceeding Workweek and/or Travel Time Limits

Generated and mailed to all recipients of providers who incur a violation for exceeding workweek and/or travel time limits.

SOC 2279 (1/16), IHSS Program Live-In Family Care Provider Overtime Exemption

1. Must be completed by family care providers who met the qualifying criteria on or before January 31, 2016.
   
   
2. Form is submitted to CDSS by the family care provider.

SOC 2305 (8/19), IHSS Program Request for Exemption from Workweek Limits for Extraordinary Circumstances (Exemption 2)

1. Must be completed by the provider who works for multiple recipients and meet at least one of the criteria.
   
   
2. Form is submitted to County staff by the provider.

SOC 2320 (10/17), IHSS and WPCS CDSS Violation Removal Request

1. Must be completed by County staff justifying their request to override a violation because County staff failed to enter the provider’s violation dispute request timely.
   
   
2. Form is submitted to CDSS by County staff.

CDSS requires counties to implement the following: 

Exemption 2

1. The provider must work for two or more IHSS recipients whose circumstances put them at risk of placement in out-of-home care.
   
   
2. All recipients for whom the provider works must meet at least one of the following conditions:
   
   
   1. Have complex medical and/or behavioral needs that must be met by the provider who lives in the same home as the recipient (Criteria A);
      
      
   2. Live in a rural or remote area where available providers are limited, and thus, the recipient is unable to hire another provider (Criteria B); or
      
      
   3. Be unable to hire a provider who speaks his/her own language in order to direct his/her own care (Criteria C).
       
3. For conditions b. and c. above, the provider does not have to live in the same home as the recipient(s) to qualify for the exemption.
   
   
4. If approved:
    
   1. The provider may work up to 90 hours per week, but no more than 360 hours per month; and
      
      
   2. The exemption must be reviewed 12 months from the date of Exemption 2 approval to determine if the specific conditions continue to exist.

 Exemption 1

1. The provider must have met all of the following criteria on or prior to January 31, 2016:
   
   
   1. Work for two or more IHSS recipients;
      
      
   2. Live in the same home with all the recipients for whom he/she works; and
      
      
   3. Related to all the recipients for whom he/she works, as his/her parent, adoptive parent, stepparent, grandparent, or legal guardian.
       
2. Providers may request the exemption by completing the SOC 2279 form and returning the form to CDSS.
   
   
3. If approved, the provider may work up to 90 hours per week, but no more than 360 hours per month.

Note: IHSS recipients whose providers met all the criteria for Exemption 1 on or before January 31, 2016 but did not have a need for this exemption may qualify for the exemption at a later date should the needs of the recipient(s) change.

Exemption 1 is only allowed for households where one live-in family care provider is providing IHSS for two or more recipients. If a household has two providers and two recipients, these providers would not be eligible for Exemption 1 even if their relationship to the recipients meets the criteria of Exemption 1.

Travel Time

1. Provider must work for more than one recipient who live in separate residences and travels directly from one location where authorized services are provided to the other location where authorized services are provided on the same day.
   
   
2. Provider must submit a completed and signed SOC 2255 to County staff.
   
   
3. Provider may claim a combined maximum of seven hours of travel time per week on the SOC 2275.
   
   
4. Travel time hours are not included as part of the provider workweek limitation and will not be deducted from the recipient’s monthly authorized service hours.

Violation

1. A violation is generated when a provider exceeds OT, workweek and/or travel time limitations as follows:
   
   
   1. Claims more than 40 hours in a workweek for a recipient, whose weekly authorized hours are 40 hours or less, without County approval;
      
      
   2. Claims more than the recipient’s monthly allocation of OT hours, without County approval;
      
      
   3. Claims more than 66 hours in a workweek, when the provider works for multiple recipients and has not been approved for an exemption; or
      
      
   4. Claims more than seven hours of travel time in a workweek.

Wait Time

1. Assessed by the case-carrying IHSS Social Worker (SW) at the time Accompaniment to Medical Appointment is being assessed.
   
   
   1. Wait Time, if authorized, is added to the time authorized for Accompaniment to Medical Appointment and is not shown as a separate service in IHSS.
       
2. The provider can be paid for this time if his/her presence is required at the medical appointment to assist the recipient with an IHSS-related task.
   
   
   1. These periods of time are generally short in length or unpredictable; and
      
      
   2. Also, referred to as engaged to wait (Wait Time – On Duty).
       
3. The provider cannot be paid for this time when the provider’s presence is not required and he/she is informed in advance that he/she may leave the job and will not have to resume work until a specified time.
   
   
   1. Also, referred to as waiting to be engaged (Wait Time – Off Duty).

 Workweek Limit

1. Restrictions placed on how many hours IHSS providers are allowed to work up to in a workweek as follows:
   
   
   1. One provider: one recipient – A maximum of 70 hours and 45 minutes per week;
      
      
   2. One provider: multiple recipients – A maximum number of 66 hours per week, combined. This includes WPCS hours; and
      
      
   3. One provider: multiple recipients with an exemption – A maximum number of 90 hours per week, combined. This includes WPCS hours.

The following has been approved by CDSS as acceptable documentation for the categories listed below to verify familial relationship and residence:

Exemption 1

To verify relationship:

1. Parent (Biological)
   
   
   1. Birth certificate for child; or
      
      
   2. School registration record showing parental/legal guardian relationship.
       
2. Parent (Adoptive)
   
   
   1. Court order of adoption of minor child; or
      
      
   2. School registration record showing parental/legal guardian relationship.
       
3. Grandparent
   
   
   1. Birth certificate for child; or
      
      
   2. School registration record showing parental/legal guardian relationship; or
      
      
   3. Court order of adoption of minor child; and
      
      
   4. Birth certificate of parent of minor child; or
      
      
   5. Court order of adoption of minor child parent; if parent was adopted.
       
4. Stepparent
   
   
   1. Birth certificate for child; or
      
      
   2. School registration record showing parental/legal guardian relationship; and
      
      
   3. Marriage certificate for parents.
       
5. Legal Guardian
   
   
   1. Court order of guardianship of minor child; or
      
      
   2. School registration record showing parental/legal guardian relationship.
       
6. Conservator
   
   
   1. Court order of conservatorship.
      

 Exemption 1 or Exemption 2

To verify residence:

1. Lease or rental agreement; or
   
   
2. Mortgage statement; or
   
   
3. Property tax bill/statement; or
   
   
4. Valid California vehicle registration certificate; or
   
   
5. Utility bill (e.g., electricity, gas, water/sewer, cable/satellite television, or telephone (landline); or
   
   
6. Valid homeowner’s or renter’s insurance policy; or
   
   
7. Car insurance policy/bill (no more than 60 days old); or
   
   
8. W-2 form from within the last 12 months.

N/A