Prepare for Hearing: IHSS Terminations or Reductions in Hours

Publications
#5482.01
This pub tells you how to review your In-Home Supportive Services (IHSS) hours. If you do not agree with changes in your hours, it tells you what to do. It has worksheets so you can get what you need to prepare for a fair hearing. It tells you how to prepare for a fair hearing.

This publication will help you review and challenge reductions or termination of your In-Home Supportive Services (IHSS) hours. This publication contains four tools to help you get the information you need to prepare for a fair hearing.

The following worksheets are not fully accessible. Please contact us if you need a different format for the worksheets below at 1-800-776-5746.

 

What information does the county use to determine my ability to do a particular function?

The IHSS social worker must determine how much help you need to complete each function (or activity of daily living).  A number called a functional index rank is assigned for each function.  The functional index rank is supposed to measure how much help a person needs with a particular function or activity of daily living.  The social worker determines each rank based on information you provide, information provided by others such as your doctor, family members, IHSS provider(s), and the social worker’s own observations of what you can and cannot do.  The rank for each function must be based on physical, cognitive and emotional impairment in functioning.  The rank is not based on physical limitations alone.

What functions must be ranked?

A county social worker must rank your functioning in each of these areas:

  1. Domestic Services (Housework);
  2. Laundry;
  3. Shopping and Errands;
  4. Meal Preparation/Meal Cleanup;
  5. Ambulation (formerly Mobility Inside);
  6. Bathing, Oral Hygiene and Grooming/Routine Bed Bath (Bathing and Grooming);
  7. Dressing/Prosthetic Devices (Dressing);
  8. Bowel and Bladder Care;
  9. Transfer (Repositioning);
  10. Eating;
  11. Respiration;
  12. Memory;
  13. Orientation; and
  14. Judgment.

Memory, Orientation, and Judgment, are used to determine the need for Protective Supervision only.

How does the county determine a functional index rank?

Below is a list of general standards used to figure out the rank for each function.  The IHSS Assessment Criteria Worksheet also lists specific standards for each function.  The general standards are mandatory because they are in state regulations.  The specific standards are guidelines only, because they are not in the regulations.  This publication references “MPP” section numbers.  MPP stands for “Manual of Policies & Procedures.”  The MPPs are the rules that the IHSS program has to follow.  The IHSS program rules are MPP sections 30-700 – 30-785, and you can find them online. [See rules]  The State Hearings Division also follows MPP rules.  The State Hearings Division rules are MPP sections 22-000 – 22-085, and you can find those rules online. [See rules]

The rank for each function must be based on physical, cognitive and emotional impairment in functioning.  The rank is not based on physical limitations alone.

Mental functioning.  Mental functioning must be considered in determining the rank for each function.  The state IHSS regulations, MPP section 30-756.37, provide for evaluation of mental functioning:

  • MPP section 30-756.371.  “The extent to which the recipient's cognitive and emotional impairment (if any) impacts his/her functioning in the 11 physical functions listed [above] is ranked in each of those functions.  The level and type of human intervention needed shall be reflected in the rank for each function.”
  • MPP section 30-756.372.  “The recipient's mental function shall be evaluated on a three-point scale (Ranks 1, 2, and 5) in the functions of memory, orientation and judgment.  This scale is used to determine the need for protective supervision.”

Paramedical services.  If you receive tube feeding for all nutrients, you should receive this service as a paramedical service rather than as eating, meal preparation, or meal cleanup.  In that case, both eating and meal preparation/meal cleanup should be ranked as 1.  See, MPP sec. 30-756.4.

If you need tracheotomy care and suctioning, you should receive these services as paramedical services rather as respiration.  If these are the only respiration services you need, respiration should be ranked as 1.  See, MPP sec. 30-756.4.

Variable functioning.  If your functioning varies throughout the month, the functional rank should reflect the functioning on recurring bad days.  It is not based solely on a “worst” day scenario.  (E.g., if you have arthritis, you may have days when pain is significant and days when pain is mild.  The social worker would determine your functional index ranks based on the recurring days on which you have significant pain.)  See, MPP sec. 30-757.1(a)(1).

The general standards for ranking functional limitations are at MPP sec. 30-756.1.  They are:

  • “Rank 1: Independent: able to perform function without human assistance, although the recipient may have difficulty in performing the function, but the completion of the function, with or without a device or mobility aid, poses no substantial risk to his or her safety. A recipient who ranks a "1" in any function shall not be authorized the correlated service activity.
  • Rank 2: Able to perform a function, but needs verbal assistance, such as reminding, guidance, or encouragement.
  • Rank 3: Can perform the function with some human assistance, including, but not limited to, direct physical assistance from a provider.
  • Rank 4: Can perform a function but only with substantial human assistance.
  • Rank 5: Cannot perform the function, with or without human assistance.”

What can I do if the county incorrectly ranked a task?

You can appeal the notice you receive about the change to your services immediately and ask for “aid paid pending” a hearing.  You must appeal your IHSS notice of action 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 a hearing.  If you request aid paid pending in time, your services will continue unchanged until the hearing decision.

If you receive your notice late or do not receive a notice, still 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.

How does the county determine my hours of need?

Once the county ranks you in each function, the county determines how much time it takes for completing each IHSS service you need based on the Hourly Task Guidelines (HTG).  The guidelines assist IHSS social workers in determining how much time should be provided for each IHSS task.  The guidelines also help social workers identify when exceptions must be made so you may receive the time needed to complete each service.

In determining the time for each task (hours of need for IHSS), your ability to perform tasks based on your functional index rankings is a contributing factor but not the sole factor.  Other factors include your living environment and variations in your functional capacity.  See, MPP sec. 30-757.1(a)(1).

Most functions that must be ranked have a corresponding range of time that the county allows for each IHSS task.  The IHSS social worker may grant the time needed for completing the IHSS task based on these guidelines.  However, if you need more time than what the hourly task guidelines (HTGs) provide, you may be granted an exception if the social worker can document why you need more time for completing the task.  Worksheet #3, IHSS Assessment Criteria Worksheet, has the hourly task guidelines built into it so you do not need to look them up.  See Appendix A for more information about the HTGs.  Also, see examples of when a person may need an exception to the guidelines to get more or less services than the guidelines provide.

How do I request a hearing (i.e., appeal)?

To request a hearing, do one of these:

  1. Fill out the back of the notice of action form and send to the address indicated
  2. Send a letter to:
    IHSS Fair Hearing
    State Hearings Division
    Department of Social Services
    744 P Street, Mail Station 9-17-37
    Sacramento, CA 95814
  3. Fax your request to 916-651-5210 or 916-651-2789
  4. You can call 800-743-8525
  5. You can submit a hearing request online. [Request a hearing]

What happens after I request a hearing?

You will receive two notices from the Department of Social Services, State Hearings Division.  The first notice is to confirm you requested for a hearing.  The second notice has the date, time, and place of your hearing. 

Soon after receiving your first notice, the county will assign an appeals worker who represents the county at your hearing.  You can contact the appeals worker about the reason you requested a hearing and may be able to resolve the issue without going to a hearing.  Prepare for your hearing soon if your issue cannot be resolved before your hearing date.

How do I prepare for a hearing?

Step 1 – Review your IHSS case file

You have a right to review any information in the IHSS case file related to your request for hearing.  See, MPP sec. 22-051.1.  You may contact your IHSS caseworker or the county appeals worker assigned to your case before your hearing date to schedule an appointment to review your file. 

Locate your functional index ranks in your IHSS case file.  Review form SOC 293 for information about your functional index ranks.  If the SOC 293 form is not in your case file, the social worker can print it from the county computer for you.  Also look for forms completed by a doctor about functional limitations and case worker notes about home visit observations/interviews. 

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 should 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 hearing by completing Worksheet #3, IHSS Assessment Criteria Worksheet.

Step 3 – Review the county’s position statement. 

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

To document how much time you need for completing 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 for completing 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 for completing 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 what is allowed based on your rank mark the yes box and explain why you need the additional time.