IHSS State Hearings CCWRO. ORG 1901 Alhambra Blvd. , Sacramento, CA 958167012 • Tel: 916 -736 -0616 • Cell: 916 -712 -0071 • Email: kevin. aslanian@ccwro. org ATTENTION : This “powerpoint” presentation is intended to be presented with an oral presentation to fill in the blanks left vacant. If you want a presentation, please contact CCWRO at 916 -736 -0616 or complete our “training request form” at: http: //www. ccwro. org/index. php? option=com_content& view=article&id=47&Itemid=55
Operators of the IHSS Program State Department of Social Services John Wagner, Director. Telephone: 916 -657 -2598 Eva Lopez, Deputy Director, Adult Services. Telephone: 916 -653 -5403
The Law Welfare & Institutions Code § 12300 -12317. 2 14132. 951 – IHSS Plus Waiver 14132. 95 – IHSS Personal Care Services Program (PCSP)
State Regulations MPP § 31 -700 et. seq. - IHSS State Regulations MPP § 30 -009. 22 – Application for IHSS MPP § 30 -009. 23 – Eligibility Determination How to access state regulations? http: //www. dss. cahwnet. gov/ord/PG 310. htm
DSS Underground Policies All County Letter – http: //www. dss. cahwnet. gov/lettersnotic es/PG 931. htm All County Information Noticeshttp: //www. dss. cahwnet. gov/lettersnotic es/PG 1011. htm Policy Interpretation – California Public Records Act
County Welfare Department County Welfare Director Deputy Director for IHSS Program Specialist State Hearings Representative Social Worker Supervisor Social Worker
Funding of IHSS Counties are given a certain amount to spend every year. This drives the mentality of cutting benefits to the poor by SW who were trained to help people, but are now the slashers of benefits.
IHSS Programs IHSS Residual PSPC – Medi-Cal IHSS-Plus – Medi. Cal
The Types of Services Domestic Services Related Services Non-Medical Personal Services Protective Supervision Paramedical Services
Domestic & Related Services Domestic Services in house cleaning. Related Services are: 1. Meal Preparation – 3. 02 to 7. 00, MPP 30 -757. 131. 2. 1. 17 to 3. 50, MPP 30 -757. 132. Meal cleanup does not include general cleaning of the refrigerator, stove, oven, counters, or sink which is covered under “domestic services. 3. Laundry. 4. Other Shopping Errands. 5. Medical Appointment.
Non-Medical Personal Services Bowel, Bladder Care -. 58 to 8. 00, MPP 30757. 14(a) Feeding -. 70 to 9. 33, MPP 30 -757. 14(c) Routine Bed Baths-. 50 to 3. 50, MPP 30757. 14(d) Dressing -. 56 to 3. 50, MPP 30 -757. 14(f) Menstrual Care-. 28 to. 80, MPP 30 -757. 14(j) Ambulation-. 58 to 3. 50, MPP. 30 -757. 14(k) Bathe, Oral Hygiene, Grooming-. 50 to 5. 10, MPP 30 -757. 14(e) Rub Skin, Massage, Assistance with Prosthesis -. 75 to 2. 80, MPP 30 -757. 14(g)
Protective Supervision Protective Supervision. Gets up to 283 hours a month. Or 195 hours a month if the nonmedical personal services is less than 20 hours a week.
Application Process MPP 30 -009. 22 governs IHSS applications. Application can be made by the applicant or any person on his or her behalf by phone, letter referral. The application form CA 295 is only signed by the applicant during the face-to-face assessment for services. MPP 30 -759. 11 provides for 30 days to determine IHSS hours from the date that the CA 295 is signed. PRACTICE POINTERS: Widespread county violation of due process of law.
Assessment County does a home visit. Don’t allow a in the house without an appointment. Watch out for: ◦ Counties asking applicants to sign blank releases of information; ◦ HIPPA releases. ◦ Clients should provide the information, especially medical information.
Rankings Rank 1 - Does not need help. Can do the task without any assistance. Rank 2. – Able to do the task, but needs verbal assistance. Rank 3. - Able to do task with human assistance. Rank 4. – Able to do task with substantial human assistance. Rank 5. Can’t perform task without human assistance. PRACTICE POINTER: Get a copy of the county rankings.
Reassessment Counties reassess every 12 months. IHSS clients have a right to ask for reassessment anytime. Hours cannot be reduced at assessment unless there is a change. MPP 30 -761. 28 Hours cannot be changed without an assessment.
IHSS Client With a Spouse If the IHSS applicant has a spouse, IHSS will be denied for those services that the spouse is able to provide. PRACTICE POINTER – Get a statement from the doctor that the spouse cannot do x y and z tasks. Counties have forms for these.
Proration of “Services” Counties often prorate services solely based on the number of people living in the house for related services. Counties can only prorate Domestic Services and cannot prorate “related services. Always challenge the proration - an element of widespread county abuse in California.
Protective Supervision (PS) Persons who need PS can get 195 hours a month or 283 hours a month. A person is eligible for PS is he or she wanders and gets lost, turns on the water and forgets, turns on the stove and forgets, etc. Needs a completed SOC 821 by the doctor. Make sure the doctor says the person needs 24 hours a day PS.
Protective Supervision & IHSS for children Children can get protection supervision services. Children are often denied unlawfully by counties. Get a doctor’s statement and do not allow the county to go fishing for information to make the child ineligible. Counties can prorate protective supervision if two clients are living in the same house and receiving services from the same provider.
IHSS Major Problems Not allowing persons to sign the CA 295 until the social worker (SW) comes to the house. Not allowing children to apply. Denying applications with a NOA. Prorating based on assumption not verified. Reducing hours without appropriate cause to save money.
Alternative Resources CWDs can use alternative resources to reduce hours. Defense – The alternative hours have to be voluntary.
What Is The Remedy ? Judicial Relief. Legislative Advocacy. Administrative Advocacy.
Judicial Relief Sue. Current litigation efforts. IHSS NOA potential lawsuit. Types of litigation: ◦ 1094. 5. ◦ 1085. ◦ Class Action.
Legislative Advocacy LSC programs can performs legislative advocacy if invited by a legislator to do so. There are many IHSS bills. SEIU is a big supporter of IHSS.
Administrative Advocacy Meetings with DSS ◦ Every three months Meetings with the CWD State Hearings – Every two (2) months For more information visit ccwro. org and look at the calendar.
IHSS Hearing Authorities • Goldberg v. Kelly, 397 U. S. , 254 Calderon v. Anderson, l 996) 45 Cal. App. 4 th 1841 Yee-Litt v. Richardson, 353 F. Supp. 996 Dowling v. David, (1994) 19 F 3 d 445 Madrid v. Mc. Mahon, 183 Cal. App. 3 d, 151 Marshall v Mc. Mahon, (1993) 17 Cal. App. 4 th, , 1841 Morales v. Mc. Mahon, 223 Cal. App. 3 d, 184 Miller v Woods, (1983) 148 Cal. App. 3 d 862 Bonnette v California Health and Welfare Agency, (1976) 414 F Supp 212
Fair Hearing Laws Federal CFR Title 45, Section 210 -Governing all hearing except for Cal. WORKs. State Welfare and Institutions Code § 10950 et. seq. State regulations. Division 22. http: //www. dss. cahwnet. gov/ord/CDSSManual_240. htm All County Letter and All County Information Notices http: //www. dss. cahwnet. gov/lettersnotices/default. html. Training Notes and Paraphrased Regulations. http: //www. dss. cahwnet. gov/shd/default. htm
When to Ask for a Hearing Any NOA is a Request for a FH. Anytime an application is not taken. Anytime an assessment is not done. Anytime the application is not processed within 30 days.
Who Can Ask for a State Hearing Authorized Representative (5 days to get an A. R. form) 22 -001. (5) Authorized Representative An individual or organization that has been authorized by the claimant or designated by the Administrative Law Judge or Department pursuant to Sections 22 -085 and 22 -101 to act for the claimant in any and all aspects of the state hearing or in an administrative disqualification hearing.
Timelines for Asking a FH 90 days from the date of the NOA. Before the effective date of the action or ten (10) days for Aid Paid Pending. 22 -001. d. (1) Days - Days shall refer to calendar days unless otherwise specified. 22 -001 h. (1) Holiday - A Saturday, Sunday, and the holidays as specified in Government Code Sections 6700 et seq. which result in a postal holiday or the closing of Department or county offices.
Where To File The State Hearing? FAX TO 916 -229 -4110 or 916 -229 -4131
What To Put On The NOA A general statement to keep your options open. For example: “The county is wrong”. Also specificity, like where you think there should be additional hours, if you want to to resolve hearings.
Aid Paid Pending Background – Yee-Litt v. Richardson 5 working days to restore- § 22 -073. 1 APP does not have to be paid back unlike Food Stamps and Cal. WORKs
Position Statement County has to do a position statement. The position statement shall be available 2 working days before the hearing - § 22073. 252,
Case File Availability 22 -049. 75 Examine all documents prior to and during the hearing. 22 -051. 1 Upon request, the CWD shall allow the claimant to examine the case record during regular working hours (see Section 19 -005). . 11 If portions of the case record are privileged under the provisions of Section 19 -006, the claimant shall be entitled to inspect such material only if the claimant is the holder of the privilege. . 2 The claimant shall have the right prior to and during the hearing, to examine nonprivileged information which the county has used in making its decision to take the action which is being appealed.
Negotiating with the CWD Know your case. Talk to the CWD before the hearing. Remember, the County Appeals Worker can tell the District what to do in many cases. You can always lose the “slam dunk” case depending on which Judge you get. There always “Stipulated Decisions” in lieu of CWs.
Interviewing Client & Spotting Issues Get maximum information from the claimant. Ask about past hearings. How long have they been on aid? Explore for underpayments. Underpayments can be used to off set overpayments. Have they talked to the CWD about these issues? DV Waivers? Review the case file if necessary.
Adequacy of the NOA MPP 22 -001. a(1) – Adequate NOA. ACIN 81 -151 - Great ACIN. 22 -049. 52 - Attack the NOA to get jurisdiction or a better Judge.
Burden of Proof 22 -073. 3 At the hearing, the county representative shall assume full responsibility for presentation of the county's case. 22 -073. 36 Having the burden of going forward in the hearing to support its determination.
Hearsay by itself is not enough. Always make an objection on the record to preserve the hearsay objection on a 1094. 5
Framing the issue 22 -049. 5 The issues at the hearing shall be limited to those issues which are reasonably related to the request for hearing or other issues identified by either the county or claimant which they have jointly agreed, prior to or at the state hearing, to discuss.
Postponements Adequacy of the NOA. Standards for Postponements. No Position Statement.
Time Waivers King and Ball penalties
Conditional Withdrawals Never “withdraw” a hearing request. Always do a CW if you want to withdraw. If the withdrawal is conditional: (A) The withdrawal shall be accompanied by an agreement signed by the claimant and by the county. (B) Any agreement under this provision shall provide that the actions of both parties will be completed within 30 days from the date the conditional withdrawal form is signed by both parties and received by the county. See Section 22 -071. 14 regarding adequate notice with conditional withdrawal. (C) After the county issues notice of its redetermination, if the claimant does not reinstate the hearing request within the time limits set forth in Section 22 -009, the request shall be dismissed.
Stipulated Decisions Use this option when the county does not have the proof, rather than giving the CWD time to gather evidence. Benefits of the Stipulated Decision.
No shows Reopen within 15 days – APP is back on. Second time has to show good cause.
Content of the Hearing Decision 22 -062. 3 The decision of the Director shall be in writing. . 31 The decision shall include: . 311 A statement of the facts; . 312 The statutes and regulations involved. 4 The decision shall determine only those circumstances and issues existing at the time of the county action in dispute or otherwise agreed to by the parties.
Rehearings 30 days to ask for a rehearing AB 921 - Chapter 502 statutes of 2007 http: //www. leginfo. ca. gov/cgibin/postquery? bill_number=ab_921&sess=C UR&house=B&author=krekorian
Judicial Review CCP § 1094. 5 W&IC § 10962 One Year from the date of hearing decision No filing fee required Prevailing party is entitled to attorney fees
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