IHSS Parent Provider Employment Rules

 

Larry Rosen discusses employment rules for IHSS parent providers. Digging through all county letters and MPPs, Larry answers a couple common questions in regards to two parent households where one parent is a provider and the other is a non-provider. “Must a non-provider parent work full-time?” and other similar questions are answered in this video.

MPP 30-763.451 & .452

• Manual of Policies & Procedures section 30-763.45
• Section 30-763 is titled “Service Authorization”
• 30-763.45 is specifically about “Minor Recipients Living with Parent(s)”
  • .45 – When the recipient is under eighteen years of age and is living with the recipient’s parent(s), who has a legal duty under the Family Code to provide for the care of his/her child, the IHSS specified in Section 30-763.456 may be purchased from a parent under the following condition:
    • .451 – The parent has left full-time employment or is prevented from obtaining full-time employment because no other suitable provider is available and the inability of the parent to perform supportive services may result in inappropriate placement or inadequate care.
      • (a) – For the purposes of this section, full-time employment means working an average of 40 or more hours per week regardless of worksite location. A parent providing IHSS-funded care to his/her own child is not full-time employment.
    • .452 – For the purposes of Section 30-763.451, a suitable provider is any person who is willing, able, and available to provide the needed IHSS. A suitable provider who is a person having a duty pursuant to the Family Code need only be able and available to provide the needed IHSS; the person is only considered to be unavailable if that unavailability occurs during a time the recipient must receive a specific service, for the following reasons: employment, enrollment in an educational or vocational training program, or employment searches.

• IHSS Fact Check: “The non-provider parent in a two parent household must work full-time.” This is false.

ACL 15-45 “All County Letter”

• Link to ACL 15-45 PDF file
• See Page 6, item 9 of ACL 15-45
  • Question: “MPP Section 30-763.455 states “A parent provider………shall be paid for performing authorized services regardless of the presence of the parent in the home, including non-work hours, weekends and holidays.” In a two-parent home with one parent being the IHSS provider, is the other parent, who is employed outside the home, considered a suitable provider when they are available during non-work hours, weekends and holidays?”
  • Answer: “No, a parent, who is employed full-time, is not considered a “suitable provider” if he/she is only available during non-work hours, weekends, and holidays. “IHSS may be purchased from a parent under the condition that the parent has left full-time employment or is prevented from full-time employment because no other provider is available…” (MPP Section 30-763.451). This section refers to the presence of the other parent/non-provider parent in the home and should not affect payment to the parent provider.”

ACL 19-02

• Clarifies the question, “Must a non-provider parent work full-time?”
• Link to ACL 19-02 PDF file
• See third bullet point on page 5 of ACL 19-02
  • “The parent is working part-time as a condition of employment or seasonally due to reasons other than the need to provide IHSS care for their child. Note: If the part-time work schedule is a result of the parent’s responsibility to provide needed IHSS for the minor recipient, the parent would qualify to be a paid parent provider.”
  • The exert above means that parent providers may have part-time employment. Parent providers are not allowed to have full-time employment.
• Exert from page 6 section “Suitable Provider”
  • “A parent is only considered to be unavailable if that unavailability occurs during a time the recipient must receive a specific service, due to employment, enrollment in an educational or vocational training program, or employment searches.”
  • The exert above means that It is not a requirement for the non-provider parent to be working full time. It IS a requirement for the non-provider parent to be either employed, in school, or looking for work at a time a specific service is being offered. Since PS is 24/7, any hour of the day would apply.
• Exert from page 7 section “Determining if a Parent is a Suitable Provider”
  • “In order to be a suitable provider, a parent must be able and available as defined by MPP Section 30-763.452 to provide the needed IHSS services. A parent would not be considered a “suitable provider” for any of the following reasons:
    1. The parent is unavailable because of employment. Note: Parents who are employed an average of 40 or more hours per week are considered unavailable to provide services; however, a parent that is employed part time is only considered unavailable to provide services during their hours of employment.
    2. The parent is unavailable because they are enrolled in an educational or vocational training program.
    3. The parent is unavailable due to employment searches.
    4. The parent is physically or mentally unable to provide the needed IHSS.
    5. The parent is unavailable to provide care as they have reached one of the statutory workweek maximums defined by WIC Section 12300.4 .”
• Exert from page 7 section “Two Parent Households”
• “A parent provider who meets the requirements of MPP Section 30-763.451 can be paid as an IHSS provider for performing authorized services regardless of the presence of the other parent in the home, including during non-work hours, weekends, and holidays. …”
• IHSS Fact Check: “The moment the 2nd parent (non-provider) walks into the home, the 1st parent (provider) can not be paid to be an IHSS provider.” This is false.
• Exert from page 8 & 9 section “Authorization of Two Paid Parent IHSS Providers”
  • Page 9, paragraph 3: “Accordingly, as set forth in ACL 18-31, CDSS will permit a second parent in the same household to also be a paid parent IHSS provider when the first parent who is providing IHSS has reached the statutory workweek limitation. The second parent may be paid as a parent IHSS provider to fulfill the remaining authorized hours of the minor recipient(s) in the home, once the first parent has reached the statutory workweek maximum, as long as the second parent meets all requirements set forth in MPP Section 763.45 et seq.”
  • “Example: Parent 1 is a paid parent provider to her two minor recipient children whose combined hours are 320 hours per month. The statutory work week maximum for a provider serving two recipients is 264 hours per month. Because she is no longer considered available to provide the needed IHSS services beyond 264 hours, she is no longer considered a suitable provider for the children as defined by MPP Section 30- 763.452. Parent 2 used to work full-time, but has been prevented from full-time employment due to the care needs of the children and the absence of a suitable provider (i.e. the mother’s inability to work more than 264 hours); therefore, Parent 2 may be a paid parent IHSS provider for the remaining authorized hours. However, it should be noted that Parent 2 is also limited by the statutory workweek maximums imposed by WIC 12300.4.”

ACL 18-31

• All County Letter 18-31 is referenced from All County Letter 19-02.
• Link to ACL 18-31 PDF file

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When To Use An Advocate

The process for obtaining IHSS benefits is straightforward and can usually be done without an advocate. We encourage all parents to go through the application/assessment process on their own.

Advise on When to Use An Advocate

• Parents & caregivers are encouraged to go through the application/assessment process on their own.
• Only use an advocate if it puts you in a place that is better than where you are currently at.
• Only seek advocate help if you are denied with a Notice of Action (NOA).
• Not everyone needs to use an advocate. All cases are unique and some parents’ cases are more challenging than others.

History of IHSSadvocates, LLC

Events & personal background of Larry Rosen that lead to the inception of IHSSadvocates.

• 22 years restaurant management experience
• Taught hospitality/tourism for 8 years at Long Beach City Collage
• Masters in Business Administration from the University of Redlands
• In 2005, Larry’s was son diagnosed with autism
• Larry learned of Protective Supervision & began an extensive study of the program
• Obtained Protective Supervision for his 4 year old autistic son
• Began giving presentations about PS to other parents at local events
• Started recognizing pitfalls parents ran into while trying to obtain PS
• In 2010, IHSSadvocates, LLC was founded to help parents obtain PS for their children
• To learn more details about Larry Rosen, you can read his bio here.

Links Mentioned in The Video

• IHSS Advocacy Facebook Group (Private. Only group members can see what you post/comment)

Viewer Question 1: Is there ever a time a provider would need help from an advocate?

A: Yes. If an assessment revokes an IHSS service or reduces your hours and you are struggling to get them back.

Viewer Question 2: What percentage do you collect if you win an appeal?

A: IHSSadvocates charges a fee of $11,800 (as of 03/03/2021) if we win your case. After your case is won we will continue to represent you for 3 years in the event that your hours are revoked/reduced.

Why Choose IHSSadvocates

• We do not collect a fee unless we win your case
• 600+ denials overturned since 2010
• 10+ years experience
• 96% success rate
• Our fee is less than 4 months of your 8 month retro payment (typical in most cases) that you won’t have unless you win your appeal.
• Typical IHSS benefits over a 3 year period can exceed $100,000. After we win your case, for 3 years, we will provide services that may be required in the event that your benefits are in jeopardy.
• Given our experience with the courts, and expertise gained over the years, we can organize and present your case to the ALJs in a fashion that is easy for them to follow. We take out all the leg work for you.

Click a method below to contact us today!

Call (949)-449-2089 for a free consultation
– or –
Click here to request a free advocate evaluation of your case.

Engagement in Potentially Dangerous Activities

How to establish that your nonself-directing & mentally-impaired child is likely to engage in potentially dangerous activities. What does and does not qualify for Protective Supervision. Featuring IHSS advocate Larry Rosen of IHSSadvocates.

Key Points:

If the minor is mentally impaired/mentally ill and nonself-directing, is he/she likely to engage in potentially dangerous activities? Consider here whether the minor retains the physical ability to put him/herself at risk of harm. If the answer is no, then the minor is not eligible for Protective Supervision under the Calderon v. Anderson court decision, and Protective Supervision should not be granted.

The county should document that because the child is not likely to engage in potentially dangerous activities, the minor does not meet the Garret criteria of needing more supervision than another minor of the same age without a mental impairment/mental illness.

Protective Supervision consists of observing recipient behavior and intervening as appropriate in order to safeguard the recipient against injury, hazard, or accident.

Protective Supervision shall not be authorized…when the need is caused by a medical condition and the form of the supervision required is medical.

Protective Supervision recipients must be physically capable of harming themselves. In Calderon v. Anderson (1996), the court held that the plaintiff was not entitled to Protective Supervision under the IHSS Program because his physical condition made it impossible for him to engage in any activities that would require observation or preventable intervention, and Protective Supervision was not available merely to provide constant oversight in anticipation of environmental or medical emergencies.

However, a mentally impaired or mentally ill individual who is bedridden, or in a wheelchair, is not necessarily incapable of engaging in activities that would require observation or preventative intervention under Protective Supervision. The specific factual circumstances of the individual must be considered when determining whether she/he has the physical ability to engage in potentially dangerous activities.

For example, a mentally impaired or mentally ill bedridden individual may still have the physical ability to pull at his/her G-tube that requires observation or intervention under Protective Supervision.

The risk or harm is different than the types of medical emergencies/medical conditions for which Protective Supervision is not available under MPP 30-757.172, such as the potential to fall because the mentally impaired/mentally ill person experiences poor balance.

For example, in Norasingh v Lightborne (2014) 299 Cal. App. 4th 740 176 Cal. Rptr. 3d 868, it states: Protective Supervision is available for those IHSS beneficiaries who are nonself-directing, in that they are unaware of their physical or mental condition and therefore, cannot protect themselves from injury, and who would most likely engage in potentially dangerous activites. (Calderon, supra, 45 Cal. App. 4th at p. 616). Prior cases analyzing the availability of Protective Supervison have listed examples of “potentially dangerous” conduct for which supervision many be authorized, including playing with matches; immersing electrical appliances in water; wandering away from home; cooking; smoking a cigarette; and engaging in self-destructive behavior such as temper tantrums and head-banging against a wall. (Ibid.) However, pursuant to CDSS regulation, protective supervision is only available “for observing the behavior of nonself-directing, confused, mentally impaired, or mentally ill persons”. (MPP, 30-757.171.) Thus, it cannot be authorized “when the need is caused by a medical condition and the form of the supervision required is medical.” (MPP, 30-757.172(b).)

It is CDSS’ policy that a person does not have to suffer actual injury to be eligible for Protective Supervision, but only have a history of a propensity for placing him/herself in danger. For example, a person with a documented history of nonself-direction, who has a tendency to open the front door and start walking away, does not necessarily have to make it into the street in order for this to be considered potentially hazardous behavior.

Doctors can fill out IHSS forms such as the “Assessment of Need for Protective Supervision (SOC 821)”, discussing the mentally impaired child’s potentially dangerous behavior.

A parent can keep a journal of their mentally impaired child’s potentially dangerous behavior.

IEP, Regional Center, and therapist reports relating to the mentally impaired child can be reviewed for examples of potentially dangerous behavior.

If needed, treating clinicians and/or school personal can provide eyewitness examples of the mentally impaired child’s potentially dangerous behavior.