Fair Labor Standards Act Exemption Process Supp I

IN-HOME SUPPORTIVE SERVICES

Fair Labor Standards Act Exemption Process Supp I

Release Date

02/19/2020

Section Heading

Purpose

Converted document, no content change.

Revision of existing policy and to release a new form.

What changed?

This document provides additional guidance and clarification regarding the evaluation for an Extraordinary Circumstances Exemption (Exemption 2);
Releases revised and new forms related to the exemption process;
Revises procedures related to revised Exemption 2 forms:
1. SOC 2305 (8/19), Exemption from Workweek Limits for Extraordinary Circumstances (Exemption 2) – Revised to add questions regarding efforts made by the recipient/Authorized Representative (AR) to hire an additional provider(s);
2. SOC 2310 (5/19), Notice to Provider of Ineligibility for Exemption from Workweek Limits for Extraordinary Circumstances (Exemption 2) – Revised by removing check boxes indicating Initial Exemption and Exemption Renewal as notice is now used solely for new Exemption 2 referrals;
3. SOC 2310A (5/19), Notice to Recipient of Ineligibility for Exemption from Workweek Limits for Extraordinary Circumstances (Exemption 2) - Revised by removing check boxes indicating Initial Exemption and Exemption Renewal as notice is now used solely for new Exemption 2 referrals;
4. SOC 2312 (5/19), Notice to Provider of Termination of Exemption from Workweek Limits for Extraordinary Circumstances (Exemption 2) Due to a Change in Eligibility – Revised and renamed as notice is now solely used to notify provider of the termination of a previously approved Exemption 2;
5. SOC 2312A (8/19), Notice to Recipient of Termination of Exemption from Workweek Limits for Extraordinary Circumstances (Exemption 2) Due to a Change in Eligibility - Revised and renamed as notice is now solely used to notify recipient of the termination of a previously approved Exemption 2; and
6. SOC 2313 (10/18), In-Home Supportive Service (IHSS) Program Exemption from Workweek Limits for Extraordinary Circumstances (Exemption 2) State Administrative Review Request form.
Includes procedures related to new Exemption 2 form SOC 2325 (9/19), Notice to Provider of Non-Acceptance of Subsequent Request for Exemption from Workweek Limits for Extraordinary Circumstances (Exemption 2).

Policy

Effective February 1, 2016, IHSS providers:

Receive payment for:
1. Hours worked over 40 hours in a workweek as overtime (OT);
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).
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;
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);
Are prohibited from working more than the recipient’s weekly authorized hours without County authorization; and
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. All requests for Exemption 2 evaluations must be accepted and evaluated regardless of whether it appears that the eligibility criteria will be met.

Background

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 California Department of Social Services (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.

Definitions

FLSA-related terms are defined below:

Exemption 2 (Extraordinary Circumstances Exemption)

Exemption for approved providers working for multiple recipients, who are at risk of placement in out-of-home care, to exceed workweek limitations and work up to a combined 90 hours per week, not to exceed a combined 360 hours per month.

Exemption 1 (Live-In Family Care Exemption)

Exemption for approved family care providers, working for multiple recipients, who all live in the same home, to exceed workweek limitations and work up to a combined 90 hours per week, not to exceed a combined 360 hours per month.

In-Home Operations (IHO)

A section within the Department of Health Care Services (DHCS) that administers the Waiver Personal Care Services (WPCS) Program.

Overtime (OT)

Compensation for all hours worked over 40 hours in a workweek at the rate equal to one and one-half times the regular rate of pay.

Rural Area

All territory, population, and housing units located outside of urbanized areas or urban clusters. Urbanized areas include populations of at least 50,000, and urban clusters include
populations between 2,500 and 50,000.

Special Care Discipline

Includes, but is not limited to:

Cardiology;
Neurology;
Immunology;
Orthopedics;
Physical, speech, or occupational therapy; or
Rehabilitation/prosthetics.

Timesheet Processing Facility (TPF)

Centralized timesheet processing facility in Northern California that scans, processes, and stores IHSS Individual Provider Timesheet (SOC 2261) and IHSS Program Travel Claim (SOC 2275) forms.

Travel Time

Time spent traveling directly from one location where authorized services are provided to one IHSS/WPCS recipient, to another location where authorized services are to be provided to another IHSS/WPCS recipient on the same day.

Violation

A breach in the FLSA rules and regulations as set forth by the State of California; i.e., exceeding OT, workweek, and/or travel time limits in a service month.

Wait Time

Time spent waiting at medical appointments, when Accompaniment to Medical Appointments has been authorized for the recipient, if certain criteria are met.

Waiver Personal Care Services (WPCS)

DHCS waiver program available to recipients previously enrolled in Nursing Facility (NF) Medicare Part A/B Level of Care Waiver, or individuals who have been receiving continuous care in a hospital for 36 months or greater and have physician-ordered care that are greater than those available in NF/Acute Hospital Waiver.

Weekly Authorized Hours

Recipient's monthly authorized services hours divided by four.

Workweek

Period of time beginning 12:00 a.m. Sunday and includes the next consecutive days ending 11:59 p.m. Saturday.

Workweek Limit

Restrictions placed on how many hours IHSS providers are allowed to work up to in a workweek.

Requirements

CDSS requires the collection of the following forms:

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

Must be completed by family care providers who met the qualifying criteria on or before January 31, 2016.
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)

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

CDSS requires counties to implement the following:

Exemption 2:

The provider must work for two or more IHSS recipients whose circumstances put them at risk of placement in out-of-home care.
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).
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.
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:

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.
Providers may request the exemption by completing the SOC 2279 form and returning the form to CDSS.
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.

Workweek Limit:

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.

Verification Docs

The following has been approved by CDSS as acceptable documentation to verify familial relationship and residence:

Exemption 1:

To verify relationship:

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

Exemption 1 or Exemption 2:

To verify residence:

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

Attachments

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