This publication is intended to help you challenge denials, insufficient amount of hours, reductions in hours, and/or the termination of your In-Home Supportive Services (IHSS) hours and prepare you for the state fair hearing. This publication contains three optional tools to help you get the information you need to prepare for a state fair hearing. If you have questions about your individual IHSS case, please contact Disability Rights California.

• Request for Information Documenting Patient’s Functional Limitations

  Complete this form with your doctor’s assistance.
  Publication #5482.01 – Request for Information Documenting Patient’s Functional Limitations (pdf)

• IHSS Self-Assessment Worksheet

  Complete this form with your IHSS provider. This form helps you see how much time is needed to complete each IHSS task.
  Publication #5482.01 – IHSS Self-Assessment Worksheet (pdf)

• IHSS Assessment Criteria Worksheet

  Complete this form after you have met with your doctor and obtained information from your county IHSS file. This worksheet helps you to determine your functional index ranks and if you need more time in an IHSS task than what the IHSS Hourly Task Guidelines recommend.
  Publication #5482.01 – IHSS Assessment Criteria Worksheet (pdf)

How do I ask for a hearing?

When you disagree with a county action, such as a reduction of hours, denial of an IHSS service, program or service termination, or if the County fails to take an action such as reviewing and processing an application you submitted, you can appeal your Notice of Action by requesting a fair hearing.

You or a family member on your behalf can request a hearing either online, by phone, or mail.

1. You can call toll-free 1-800-743-8525.
   Persons with hearing or speech impairments who use Telecommunications Device for the Deaf (TDD) can dial 1-800-952-8349.
2. You can submit a hearing request online by creating an ACMS account or without an account.
   We have provided the link here: Request a Hearing Online.
3. To request a hearing in writing by mail:
   1. Fill out the back of the Notice of Action (NOA) form, make a copy of the NOA, front and back, for your records, and
   2. Mail the request to:
      California Department of Social Services
      State Hearings Division
      PO Box 944243, Mail Station 9-17-442
      Sacramento, CA 94244-2430

If you or someone who will be testifying on your behalf (i.e., your IHSS provider) need an interpreter, include this in your request.

When should I ask for a Hearing?

You can immediately appeal the IHSS Notice of Action you receive about the changes to your services and ask for “aid paid pending” a hearing. You must appeal your IHSS notice before the date the change is supposed to take effect to get aid paid pending. See MPP sec. 22-072.5. Aid paid pending means that your services will continue at least until your hearing. If you timely request aid paid pending, your services will continue unchanged until you get the hearing decision.

If you receive your Notice of Action late or do not receive a notice and you disagree with the hours authorized, you should appeal right away and ask for aid paid pending.

If you miss the deadline to appeal with aid paid pending, you still have 90 days to ask for a hearing from the date you receive the notice of action. See, MPP sec. 22-009.1. If you are applying for IHSS for the first time and you receive a denial you disagree with, you have the right to appeal within 90 days.

What if I miss the 90-day deadline to ask for a hearing?

You can still request a hearing if you have “good cause” for requesting a hearing (i.e., appealing) after the 90-day deadline. See Cal. Welf. & Inst. Code § 10951(a)(2). Good cause means that you have a substantial and compelling reason beyond your control for asking for a hearing beyond 90 days from the date of the Notice of Action. Cal. Welf. & Inst. Code § 10951(c). The Administrative Law Judge will determine whether good cause exists for the late request for hearing.

A request for hearing based on good cause will not be granted if the request is filed for more than 180 days from the date of the Notice of Action’s date. Cal. Welf. & Inst. Code § 10951(a)(2). You should consult with Disability Rights California or an attorney to determine if you are within the 90-day deadline or if you have a good cause for requesting a hearing after the 90-day period or if the notice is not an adequate written notice of action.

What is ACMS and why should I create an account?

The California Department of Social Services (CDSS), State Hearings Division uses the Appeals Case Management System (ACMS) to manage and conduct timely state fair hearings across California. ACMS is an online database that can be accessed by individuals who wish to appeal an administrative decision on benefits regarding 22 different state-based social service programs, including Medi-Cal and IHSS.

ACMS provides a user portal that allows individuals to do the following:

• Request a state fair hearing.
• Receive State Hearing Division notices electronically including information on the date, time, and place of hearings.
• Review status of existing cases.
• Submit case supporting documents.
• Receive administrative agency’s statement of position and supporting evidence.
• Request postponements, re-opening, re-hearings, and withdrawals.

What happens after I request a hearing?

You will receive two notices from the California Department of Social Services (CDSS), State Hearings Division. The first notice is to confirm you requested a hearing and provides information about your hearing rights. The second notice must inform you at least ten days in advance of the date, time, and the mode or place of your fair hearing. The State Hearings Division automatically schedules a fair hearing by telephone, but you also have the right to ask for your fair hearing through video conference or in-person at your local county welfare office.

Soon after receiving your first notice, the county will assign an appeals worker, also known as the Hearing Specialist or Appeals Representative, who represents the county at your hearing. Normally, the appeals worker will send you a letter informing you of who they are and will provide their contact information. You can contact the appeals worker about why you asked for a hearing. You also may be able to resolve your IHSS issue without going to a hearing. You should prepare for your hearing as soon as possible in case your issue cannot be resolved before your fair hearing date.

What is the difference between a Conditional Withdrawal and Withdrawal of Your Request for Hearing?

Conditional Withdrawal

The appeals worker may call you before the scheduled hearing to discuss a “conditional withdrawal” of your hearing request. A conditional withdrawal is a written agreement where the county agrees to do something, such as completing a new IHSS assessment, or increasing your IHSS hours, as a condition for you withdrawing (i.e., canceling) your hearing.

The county will provide a conditional withdrawal form for you to review, sign, and return. If you sign a conditional withdrawal of your fair hearing, you will not have your hearing. You should review, understand, and agree with the terms of your conditional withdrawal form before you sign the agreement to withdraw your hearing request. Most counties will agree to provide your conditional withdrawal form by email if you ask. If you disagree or don’t understand what the conditional withdrawal says, do not sign it and seek advice from an attorney. The county will have 30 days to implement the terms of the conditional withdrawal. You can ask to have the hearing scheduled again if you disagree with the new assessment and new NOA.

Withdrawal

The appeals worker may ask if you want to withdraw (i.e., cancel) your request for a hearing. A withdrawal is different from a conditional withdrawal of your hearing request because you agree to withdraw your hearing request as you no longer dispute the IHSS notice of action. This means the county has no obligation to make any changes in your IHSS services in exchange for you withdrawing your hearing request. If you agree to withdraw, your hearing will be cancelled, and you will receive a notice from the State Hearings Division confirming your request to withdraw your hearing. You should immediately contact the State Hearings Division if you did not intend to withdraw your hearing request and still disagree with the county determination for a reduction, termination, or denial of your IHSS services.

How do I prepare for a hearing?

Step 1 – Review your IHSS case file

You should obtain information on how the county IHSS worker determined the IHSS services and how many hours you could be authorized. You have a right to review any information in the IHSS case file related to your request for a hearing. See, MPP sec. 22-051.1. You may contact your IHSS county worker or the county appeals worker assigned to your case before your hearing date to schedule an appointment to review your IHSS case file including any case worker notes which might be in your file.

Locate your Needs Assessment forms in your IHSS case file. These forms will include notes about why hours were or were not given. Review the SOC 293 IHSS Assessment form for information about your functional index ranks. This is because your hours are based on your functional index ranking and the IHSS Hourly Task Guidelines. If the SOC 293 form is not in your case file, the IHSS worker can print it from the county computer for you. Also, look for the IHSS worker’s notes about home visit observations and interviews. If you are challenging a reduction or termination of an IHSS service, ask for copies of both your new and old county assessment forms and your new and old SOC 293 forms. You may request copies of any documents in your IHSS case file.

You may also ask for copies of any doctor or medical reports and any recent and previous paramedical forms in your file. If your IHSS hours were reduced, ask your IHSS worker for copies of the regulations listed on your notice of action.

If the worker will not give you copies of your IHSS case file, tell them you have the right to inspect your file and obtain copies. You can give the worker a copy of All County Letter (ACL) 18-52 “Release of In-Home Supportive Services (IHSS) Case Records to Applicant/Recipient or Authorized Representative” (May 9, 2018). This letter reminds counties of the laws and regulations supporting your right to access your IHSS case file with instructions on how to provide access.

Step 2 – Gather information

1. Ask your doctor to provide current information about your functional limitations. You and your doctor should review any information provided to the county, check for accuracy, and correct mistakes. Your doctor must also explain any changes in your condition. If your condition changes daily, your doctor should determine your ranks based on your bad days. Your doctor may use Worksheet #1 (Request for Information Documenting Patient’s Functional Limitations) to provide this information.
2. Determine how much time you need for completing each IHSS service you need by completing Worksheet #2, IHSS Self-Assessment Worksheet.
3. Detail your care needs to present at your fair hearing by completing Worksheet #3, IHSS Assessment Criteria Worksheet.

Step 3 – Review the county’s position statement

The county is required to prepare and provide you with a written County Statement of Position at least two business days before your scheduled hearing. See MPP section 22-073.25. The county’s position statement is an important document that summarizes the facts of the case and provides the regulations and evidence that the county relied on to justify their decision. The county will also include a list of witnesses that the county intends to use during the hearing. Generally, the county IHSS worker is the county’s witness who will testify at the hearing. To prepare your case you should review the county’s position statement before your hearing. If the county’s position statement contains any factual errors, you can either contact the county appeals worker assigned to your case or make a list of what is incorrect and/or raise it to the judge during your hearing.

Step 4 – Submit your evidence before your hearing

You should submit any documents supporting your position for more IHSS hours and/or services before your hearing. You can submit copies of forms filled out by your medical providers and medical information, logs, or journals documenting the time to complete certain tasks or hazards.

If you did not submit your evidence before the hearing, you should tell the Administrative Law Judge (“ALJ”) you have evidence you’d like to submit. If it is an in-person hearing, you can give copies of your evidence to the judge and give a copy to the county appeals worker. If you have an ACMS account, you can upload documents to ACMS. The judge and the county appeals worker will have access to the documents you upload to ACMS.

If you cannot submit the evidence before the end of the hearing, you should ask the judge to keep the hearing record open. If the judge agrees to keep the hearing record open after the hearing ends, you and the county will be told the deadline to submit your evidence. You must submit your evidence by the deadline set by the judge in order for your evidence to be considered.

How can I get the county’s evidence before the hearing?

The county must make their statement of position available to you two (2) business days before your scheduled hearing in one of 3 ways:

1. Authorized Secure Electronic Transmission
   If the county has the capability, the county may send you the county position statement electronically only if:
   1. You gave the county permission to electronically get the position statement, and
   2. The county can comply with all state and federal privacy laws in electronically sending you their position statement.
      The county cannot decide to send you their county position statement electronically without first consulting with you and obtaining your permission. If you don’t have access to a secure computer or the ability to print the position statement, you can choose to get a paper copy (see below).
2. First-Class Mail
   The county can send a paper copy of their position statement to you by first-class mail through the U.S. Postal Service. The county must ensure to mail the position statement early enough for you to receive it at least two business days before the hearing. The county will mail the document when they do not receive your permission to receive it electronically or the county cannot comply with state and federal privacy laws in sending it electronically to you.
3. Paper Copy at the County Welfare Department
   The county may make a copy of their position statement available at the appropriate county welfare office for you to pick up. You may pick up the document anytime during the county office’s business hours at least two business days before the hearing date.
   If you do not receive the county position statement two business days before your hearing, you should contact the State Hearings Division to ask to postpone (i.e., reschedule) your scheduled hearing. Otherwise, at the hearing the judge will ask if you received the county’s position statement two business days before the hearing.
   
   If you did not receive it two business days before, the judge will then ask if you want to postpone your hearing for another date to allow you to review and adequately prepare for the hearing. This is considered a postponement for good cause.

How can I ask for language assistance?

The county must provide you with language assistance at no cost to you when you request it. When you receive the county’s position statement, you will also receive a “Notice of Language Services- Fair Hearings” (GEN 1365A) form explaining your right to have the documents read to you in your preferred language. The notice will also have the name of the appeals case worker assigned to your case and their phone number.

If you have limited English proficiency because English is not your first language, you should contact the appeals case worker to request for oral interpretation of the county’s position statement at least two business days before your scheduled hearing.

Where can I find the laws about IHSS?

The IHSS regulations are in the Department of Social Services’ Manual of Policy and Procedures (MPP), Division 30. Click here for the IHSS regulations. There are 4 entries for the Division 30 regulations. Skip the first entry. The IHSS regulations start about 5 pages into the second entry, continues through the third entry, and finishes in the fourth entry.

All county letters are directives the California Department of Social Services sends to counties. The letters cover many state programs. Only a few will be about IHSS. Click here for the All-County Letters.

All-county information notices are announcements the state Department of Social Services sends to the counties. The notices cover a lot of programs. Only a few will be about IHSS. Click here for the All-County Information Notices.

What happens at the hearing?

The county presents first and testifies about why your hours were cut or why you should not have the additional hours you believe you need. If the county reduced your hours or eliminated a service, such as protective supervision, the county has the burden of showing how you have improved or how your changed condition or circumstances means you need fewer hours.

You and the county can present evidence through testimony by witnesses, letters, diaries, logs, and medical reports about your needs in each IHSS service category where you and the county disagree. Your evidence should explain:

• What services you need.
• How long it takes to provide the services.
• The reason you need more time than suggested in the assessment or the guidelines, and
• What risks you may be exposed to if you do not get the level of services you need.

IHSS fair hearings are informal. You have the right to choose how you want to attend your hearing – by telephone, video conference, or in-person at the County Welfare office. You must contact the State Hearings Division if you want your hearing to be in-person or by video conference. If you choose to have an in-person hearing, you are seated at a table – not in acourtroom.

Whether the hearing is in-person, by telephone, or video conference, it is important that you explain why you need time, or more time, for a particular IHSS service category. The best evidence is from people who provide your care and have a daily record of the time it takes to complete an IHSS task. Witnesses may include you, past and present IHSS providers, regional center service coordinators, friends, family, and anyone else with information the judge needs. For each witness, list the points you want that witness to make and cross off each point as it is made.

What happens after a state fair hearing?

Sometime after the conclusion of your hearing, the State Hearings Division will mail you the Administrative Law Judge’s written administrative hearing decision. The decision is also uploaded to your ACMS case file.

What if I lose my state fair hearing?

If you get an unfavorable written decision, you have two options. You can request a rehearing. You can also appeal the decision by filing a Writ of Administrative Mandamus.

1. Request for Rehearing

When you submit a request for rehearing, you are asking the State Hearings Division for a new hearing because the hearing was unfair or inadequate, the written decision was legally and/or factually incorrect, or both. Both the claimant and the county can request a rehearing after a written decision is received.

You have 30 days from the date you receive the released administrative hearing decision to submit your request for a rehearing to the State Hearings Division. Welf. & Inst. Code § 10960(a). A copy of the rehearing request is served to the other party to the hearing, i.e., the county, and they have five (5) days to file a response supporting or objecting to the request. MPP § 22-065.21-.211. The State Hearings Division has 35 business days to provide you with a response to your request for rehearing. However, it is not unusual for State Hearings to take more than 35 business days to provide a decision on your rehearing request. If this happens, contact the State Hearings Division to follow up on your request for rehearing.

According to Welfare and Institutions Code § 10960(b), (b) the grounds for requesting a rehearing are as follows:

1. If the adopted decision is inconsistent with the law.
2. If the adopted decision is not supported by the evidence in the record.
3. If the adopted decision is not supported by the findings.
4. If the adopted decision does not address all of the claims or issues raised by the parties.
5. If the adopted decision does not address all of the claims or issues supported by the record or evidence.
6. If the adopted decision does not set forth sufficient information to determine the basis for its legal conclusion.
7. Newly discovered evidence, that was not in custody or available to the party requesting rehearing at the time of the hearing, is now available and the new evidence, had it been introduced, could have changed the hearing decision.
8. For any other reason necessary to prevent the abuse of discretion or an error of law, or for any other reason consistent with § 1094.5 of the Code of Civil Procedure.

You can find more information about requests for rehearing by reviewing the State Hearings Division’s Rehearing Review Protocols on their website.

2. Filing a Writ of Administrative Mandamus

You have one (1) year from the date of the released administrative hearing decision to file an appeal in Superior Court. To appeal, you will need to file a Code of Civil Procedure § 1094.5 Writ of Administrative Mandate. An administrative mandate is a statutory remedy which enables a petitioner to challenge an administrative decision after an adjudicatory hearing in which the agency performs a fact-finding function. There are filing fees associated with submitting the appeal in Superior Court, however, you may request that the court waive the filing fees if you are receiving public benefits such as Medi-Cal, In-Home-Supportive Services (IHSS), CalFresh, General Assistance, Supplemental Social Security (SSI), and/or Cash Assistance Program for Immigrants (CAPI).

We recommend that you consult with an attorney for legal advice on the legal merits of your individual case. You can contact Disability Rights California and/or your local legal aid organization to obtain legal advice.

How to use Worksheet #2 – IHSS Self-Assessment Worksheet

To document the time you need to complete each task, write in the start time, finish time, and total hours and minutes for each service. Remember to note if you need more time than what is allowed under the hourly task guidelines and explain why. You must complete this chart to adequately prepare for your hearing. Once completed, your self-assessment is your evidence about how much time you need to complete each IHSS task you need help with.

If you need to go to a hearing and are in front of an administrative law judge or you are trying to negotiate with a county hearing representative, you want to present credible evidence (such as the IHSS Self-Assessment Worksheet) about how much time it takes for each IHSS service you need. Guessing and estimating about how much time you need for each service will not be helpful to you at your hearing. This is because you are entitled to the time needed for completing each IHSS service you need help with. You are not entitled to the estimated time or the time you think or guess you need for completing each IHSS service.

How to Use Worksheet #3 – IHSS Assessment Criteria Worksheet:

Step 1 – Check the appropriate rank, as determined by your doctor, for each function on Worksheet #3. To do this transfer information about your functional limitations from Worksheet #1, Request for Information Documenting Patient’s Functional Limitations, to Worksheet #3, IHSS Assessment Criteria Worksheet.

Step 2 – Record how much time you need for completing each IHSS service you need help with. To do this, transfer information about how much time you need to complete each IHSS service you need help with from Worksheet #2, IHSS Self-Assessment Worksheet, to Worksheet #3, IHSS Assessment Criteria Worksheet. If you need more time than is allowed based on your rank, mark the “yes” box and explain why you need the additional time.