In Home Supportive Services
(IHSS) is an alternative for individuals who might otherwise be placed in a
facility when they are unable to care for themselves in their own home.
Changes have been made in how
IHSS is funded. Most IHSS services were
part of the Medi-Cal program with half paid by the federal government and half
with State and county funds. However,
some services and cases were only State and county funded. The recent changes brought under Medi-Cal
most of the services and cases that before were only funded by State and County
funds under the original residual IHSS program.
Now half of the costs for those services and cases are federally
funded. There are now three IHSS programs: (1) The original
residual Program (very few people remaining under this program); (2) The
Independence Plus Waiver; (3) Medi-Cal Personal Care Services Program.
IHSS provides a set of
services to individuals who require assistance in activities of daily living
and other services to remain safely in their own homes. These services include domestic services,
services related to domestic services (related services), personal care
services, paramedical services, and protective supervision. At some time in the distant past, none of
these services were provided under Medi-Cal.
They were provided under the old state IHSS program through only state
and local funds.
In the early 1990's, the
state shifted all of the services that it believed it could into the Medi-Cal
program in order to receive federal financial participation for providing these
services. The state called this new
program the Personal Care Services Program (PCSP). The state could not shift all of the services
at that time (or so it thought) because some of the services were: 1) non-medical such as protective
supervision, domestic and related services that were not provided ancillary to
personal care services, and the restaurant meals allowance; 2) provided by
spouse or parent providers (federal Medicaid rules prohibit payment for
personal care services provided by relatives of a Medicaid beneficiary); 3)
services in which payment for the services was made directly to the
beneficiary, i.e. advance pay (federal Medicaid rules generally allow only
medical vendor payments); and 4) provided to individuals with a share of cost
(federal Medicaid rules generally require the same share of cost for all
Medi-Cal beneficiaries--the IHSS program has a lower share of cost).
Therefore, the state shifted
everything to PCSP except the following:
1.
All protective
supervision services
2.
The restaurant
meals allowance
3.
All services for
individuals who need domestic or related services only
4.
All services for
individuals who have spouse or parent providers
5.
All services for
individuals who receive payment in advance (advance pay)
6.
All services for
individuals who have a share of cost for Medi-Cal
7.
All individuals
who are not eligible for full-scope Medi-Cal
These seven categories
continued to be funded under the old state IHSS program, which came to be
called the IHSS Residual (IHSS-R) program.
Some people could receive services under both PCSP and IHSS-R, for
example people who received protective supervision but did not have a spouse or
parent provider. These individuals
received protective supervision under the IHSS-R program but received all other
services under PCSP. These are called
"split cases." By contrast, an
individual who had a spouse or parent provider and received protective
supervision would receive all services under the IHSS-R program.
Shortly after the PCSP
program began, the state shifted individuals with a share of cost into the PCSP
program by paying the difference between the Medi-Cal and the IHSS share of
cost. This is called buy-in. Of course, an individual who did not qualify
for PCSP for some other reason, e.g., the individual had a spouse or parent
provider, remained in the IHSS-R program.
In 2004, the state was able
to shift funding for everyone else who has full scope Medi-Cal from the IHSS-R
program to the Medi-Cal program. It did
this by shifting protective supervision and non-ancillary domestic and related
services into the PCSP program. The
other services that ordinarily cannot be funded under Medicaid because of
relative provider and medical vendor payment rules were shifted into a new
Medicaid waiver called the Independence Plus Waiver (IPW).
Before, there were certain
IHSS cases that could not be covered by Medi-Cal because of federal Medicaid
rules. Those were cases where the
provider was the parent of a child under age 18 or the spouse, where there was
advance pay, or where someone got a meal allowance instead of time authorized
for meal preparation and food shopping.
These cases are now covered by Medi-Cal under the IPW.
All of the rules that apply
to the original IHSS-R program also apply under the IPW. However, some program rules changed because
of the switch to Medi-Cal:
(1)
Some who paid a share of cost for IHSS
no longer do so: Persons who qualify for Medi-Cal with no share of cost under
the A&D
(2) Children and spouses who qualify for
Medi-Cal through institutional deeming under a home and community based waiver
(like the waiver administered by regional centers) also can qualify for IHSS
services provided by a parent or spouse, including protective supervision
services where authorized.
In addition, the provider
income received by the spouse or parent will not count under any Medi-Cal
program. The parent’s provider income
remains Medi-Cal exempt until the child reaches age 21. However, there are no longer split cases
because of requirements under the IPW.
That means that no more than 195 hours a month total can be authorized
for a non-severely impaired IHSS recipient who receives services from both a
spouse and someone else or from both the parent of a minor and someone else.
DHS ACWDLs 05-21, 05-26, 05-29, 06-04, 06-19;
The IPW program is a Social
Security Act section 1115 demonstration program. The type of waiver is an "Independence
Plus" waiver. This is a type of
waiver that
All IHSS services for
individuals with spouse and parent providers will be provided under the
IPW. (See ACIN No. 1-28-06, Question
4.) This includes protective
supervision, which can still be provided by parent providers just as under the
old system. (See ACIN No. 1-28-06,
Question 9.) However, all services,
including protective supervision, will now be funded under Medi-Cal through the
IPW, rather than under the IHSS-R program.
All of the old restrictions on spouse and parent providers apply, such
as restrictions on working outside of the home.
(See ACIN No. 1-28-06, Question 6, 8.)
All of the non-restrictions also apply.
(See ACIN No. 1-28-06, Question 12, 13.)
A person who is eligible for
the IPW will no longer be eligible to receive services under the IHSS-R
program to the extent those services are
available under the IPW program. A
person will not be eligible to receive services under the IPW to the extent
those services are available under the PCSP program.
Individuals who are not
eligible for full scope Medi-Cal (and therefore cannot receive services under
PCSP or IPW) continue to receive services under the IHSS-R program. (See ACIN No. 1-28-06, Question 1.) They can receive limited-scope Medi-Cal. (
Recipients who remain in the IHSS-R program are those
who have been determined eligible for IHSS-R services, but who are not eligible
for federally funded full-scope Medi-Cal, such as non-citizens under the five
year ban. Recipients in the IHSS-R
program are eligible for Medi-Cal only if they have had a Medi-Cal eligibility
determination by a Medi-Cal eligibility worker and meet Medi-Cal eligibility
criteria for coverage under one of the Medi-Cal programs appropriate for their
status.
IHSS-R, IPW and PCSP operate
as a single program. The Medi-Cal
statutes that cover IPW and Medi-Cal personal care services says that original
IHSS residual program rules are to be followed when authorizing services. (Welf. & Inst. Code § 14132.951(e);
Welf. & Inst. Code § 14132.95(i).
When people say “IHSS” they usually are referring to all three
programs. Most people’s services are covered
by the Medi-Cal PCSP where the federal government pays for half the cost of
services under regular Medicaid program rules– just as the federal government
pays for half the cost of other Medi-Cal services. If the services are being provided by the
spouse or the parent of a minor, or if there is advance pay or restaurant meal
allowances, and the recipient is an
unrestricted Medi-Cal beneficiary, then the services are covered under the IPW
because of federal Medicaid rules.
Persons not eligible for unrestricted Medi-Cal must receive their IHSS
services under the IHSS-R Program.
Protective supervision used to be covered only under the former IHSS
residual program but is now available under all three programs.
The changes in IHSS funding
have resulted in some positive and some negative changes in eligibility for
IHSS services, and calculation of maximum hours. These changes are described below.
Before, cases where only
domestic and related services were authorized were covered under the original
residual IHSS program. Hours authorized
for protective supervision also were only covered under the original residual
IHSS program. During the approval
process of the IPW program,
The Developmental
Disabilities (DD) HCBS waiver, as well as other HCBS waivers provide for
something called institutional deeming.
Although this may seem counterintuitive, institutional deeming is a good
thing. This is because institutional
deeming provides that income of a spouse or parent of a child under age 18 will
not be deemed to a Medi-Cal beneficiary who is in an institution. Community deeming provides that income of a
spouse or parent of a child under age 18 will be deemed to a Medi-Cal
beneficiary who is living in the same household as the spouse or parent. Community deeming often made it impossible
for an individual to live at home because the deemed income of the spouse or
parent often made the individual ineligible for Medi-Cal. The individual would qualify for Medi-Cal
only if placed in an institution.
Under the old IHSS system, if
someone received Medi-Cal under an HCBS waiver, such as the DD waiver, and they
also received PCSP, they would receive all of the Medi-Cal benefits, including
PCSP, with zero share of cost. However,
if the individual needed protective supervision, there would be a share of cost
for protective supervision. This is
because protective supervision was only available under the IHSS-R program and
there was no institutional deeming under that program. Community deeming was always applied.
Under the new system, all
people with full-scope Medi-Cal will receive services under the Medi-Cal
program. This means that institutional
deeming will apply across the board.
This is true both for people who receive their services under PCSP and
under IPW. (See ACIN No. 1-28-06,
Question 10.) Community deeming will
continue to be applied to people who continue to receive services under the
IHSS-R program.
Before, if someone qualified
for Medi-Cal under one of the Nursing Facility Waivers or under the Waiver for
Persons with Developmental Disabilities, that person would not qualify for
services provided by a spouse or, if a minor, a parent. Now that individual may receive IHSS services
with a parent or spouse provider under the IPW.
HCBS waiver budgets of
enrollees who used to receive residual IHSS will not be reduced by the IPW
Program. The California Department of
Health Services (DHS) authorized “Grandfather” protection for persons who were
enrolled on December 1, 2004, in one of the Home and Community Based Services
(HCBS) waivers administered by the DHS’ In-Home Operations (IHO) and who were
also receiving In-Home Supportive Services (IHSS). Waiver enrollees are subject to an individual
cost-effective cap that counts all Medi-Cal services including HCBS waiver
Medi-Cal services. Not counted against
the individual cost effectiveness budget were IHSS services not covered under
Medi-Cal: advance pay, parent or spouse
provider services, and protective supervision.
Under the IPW and clarification of services coverable under Medi-Cal
outside the demonstration waiver, all of these services are now covered under
Medi-Cal. So that HCBS waiver enrollees
would not have their IHSS services count against their individual budgets
thereby reducing what could be covered as waiver services, DHS agreed to
“grandfather” or freeze HCBS enrollees’ budgets.
In the past, if someone had
income too high to qualify for SSI but could qualify for Medi-Cal with no share
of cost under the Aged & Disabled Federal Poverty Level (A & D FPL)
Program or as a “Pickle”, that person probably would have had a share of cost
if he or she elected to receive advance pay.
Now that individual may receive IHSS services with advance pay without a
share of cost under the IPW.
The Medi-Cal program
distinguishes between severely and non-severely impaired when authorizing
protective supervision hours[1]. If you are non-severely impaired, you cannot
be authorized more than 195 protective supervision hours in a month. The total maximum amount of hours you can
receive for all services is 283 hours in a month whether you are severely or
non-severely impaired. If you are
non-severely impaired and receiving services under PCSP, you will be authorized
195 hours for protective supervision plus the other hours authorized or the
difference between your other hours authorized and 283, whichever is less.
Example: The
county determines you need protective supervision. The county authorizes 70 hours for services
other than protective supervision and determines that you are non-severely
impaired. You would be authorized a
total of 265 hours – 70 hours plus 195 protective supervision hours. If you instead had been authorized 100 hours
for services other than protective supervision, then the total hours you would
be authorized is 283 because that is the maximum number of hours that can be
authorized in a month.
If you are non-severely
impaired and receiving services either under the IPW or IHSS-R programs, you
will be authorized up to 195 hours maximum, regardless of your protective
supervision and additional personal care services needs. In this situation, it may be worth the effort
trying to establish severely impaired status through the self-assessment
process covered in Chapter 4 to obtain more hours if you are being served under
the IPW or IHSS-R programs. Otherwise,
if you are an IPW recipient, you may want to consider changing the conditions
in which you receive services in order to gain eligibility under PCSP to obtain
additional hours. The ways in which to
do so are discussed below.
The change provides that for
non-severely-impaired individuals, protective supervision hours are limited to
195 hours, while non-protective supervision hours may be provided in addition
up to a combined maximum of 283. (See
ACIN No. 1-28-06, Question 15.) This
seems to be designed to treat former split case beneficiaries who are
non-severely impaired and now receive all services including protective
supervision under the PCSP program the same way they were under the Residual
program. However, there is no authority
in the law for limiting protective supervision hours to 195 hours because there
is no such limitation under the PCSP program.
Welfare and Institutions Code
section 14132.95(g), which governs the PCSP program, provides:
"The maximum number of hours available under the In-Home Supportive
Services program pursuant to Article 7 (commencing with Section 12300) of
Chapter 3, Section 14132.951, and this section, combined, shall be 283 hours
per month."
Since protective supervision
is provided based on a 24-hour need for the services it must be provided up to
the maximum available hours. This is 283
for the PCSP program.
There are no more "split
cases," i.e., non-severely disabled people who receive services under both
the Residual and PCSP programs. People
will receive all services under either PCSP, IPW, or the IHSS-R program. Full-scope Medi-Cal beneficiaries who have
spouse or parent providers, receive advance pay, or receive the restaurant
meals allowance will receive all services under the IPW. All other full-scope Medi-Cal beneficiaries
will receive all services under the PCSP program. All limited-scope Medi-Cal beneficiaries, and
beneficiaries who are not eligible for Medi-Cal, will receive all services
under the IHSS-R program.
This is bad because it may
result in a reduction in the maximum hours that some individuals can
receive. Under the IHSS-R program there
is a limitation of 283 hours per month for individuals who are "severely
impaired," i.e. who need 20 hours or more per week of personal care
services and/or meal preparation, and 195 hours per month for individuals who
are "non-severely impaired," i.e., who need less than 20 hours per
week of those services. Under the PCSP
program, there is no distinction between individuals who are severely or
non-severely impaired. The 283 hour
limit applies to both groups. Protective
supervision hours under the Residual program were limited to 195 hours per
month, but additional non-protective supervision hours could be provided under
the PCSP program for a combined total hours up to 283 per month.
Therefore, a non-severely
impaired individual who had both a spouse or parent provider and a non-spouse
or parent provider would receive services from the spouse/parent provider under
the Residual program and from the non-spouse/parent provider under the PCSP
program. Also an individual who did not
have a spouse or parent provider, and who needed protective supervision, would
receive protective supervision under the Residual program and other IHSS
services under the PCSP program. In both
cases, the non-severely impaired individual could receive IHSS-R program
benefits up to a maximum of 195 and additional PCSP program benefits up to a
combined maximum of 283.
This does not make a
difference for "split cases" transferred to the PCSP; the 283 maximum
under PCSP continues to apply. This also
does not make a difference for individuals who have only a spouse or parent
provider. Those individuals were limited
to 195 hours under the IHSS-R program if non-severely impaired. The same rules apply under IPW. However, this does make a difference for
"split cases" transferred to the IPW, namely individuals who have
both a parent/spouse and non-parent/spouse provider. (See ACIN No. 1-28-06, Question 5, 15.) These individuals will have their maximum
hours reduced to 195.
The limitation on split cases
is not an issue for advance pay beneficiaries.
An individual must be severely impaired in order to receive advance
pay. Therefore, maximum hours were 283
for severely-impaired beneficiaries under the IHSS-R program and continue to be
283 for severely-impaired beneficiaries under the IPW.
The limitation on split cases
may be an issue for individuals who receive the restaurant meals
allowance. Individuals with the
restaurant meals allowance who receive the maximum grant of 195 hours (if there
is anyone in that category) may want to give up the restaurant meals allowance
and receive hours for meals so that they can be transferred to the PCSP
program. They may also want to consider
disconnecting their stove so that they can qualify for the restaurant meals
allowance under the SSI program if they want to continue to have restaurant
meals rather than meal services under IHSS.
It also may be possible to
qualify an IPW beneficiary for PCSP by having a non-spouse/parent provider
only.
It may be possible to
increase the maximum hours by qualifying someone as severely impaired. Therefore, look carefully at the hours
assessed for personal care and meal preparation. Very often counties assess this at 19.5, or
some other figure close to 20, for the purpose of denying the severely-impaired
maximum hours. If these hours are
increased to 20 per week, the individual qualifies for 283 hours per month
under the PCSP, IPW or IHSS-R programs.
If you are faced with a
reduction due to the program change, please contact DISABILITY RIGHTS
CALIFORNIAor OCRA. Here are some
questions that will give us the information that we need to evaluate these
cases:
1.
Did you get a
notice of action?
2.
What is the date
of the notice?
3.
When did you get
the notice?
4.
Is there a
reduction in your hours?
5.
What are the old
hours and what are the new hours?
6.
Does the notice
say you need hours for personal care and meal preparation? How many hours?
7.
Do you have a
spouse or parent provider?
8.
Do you receive
protective supervision?
9.
Do you receive
Medi-Cal?
10.
Do you receive a
restaurant meals allowance from IHSS?
(It will say on the notice.)
[1] To figure out if you are a “severely impaired” or a
“non-severely impaired” recipient, please refer to the section entitled
“Monthly Hours-Severely vs. Non-Severely Impaired” in Chapter 2 explaining how
those categories are determined under IHSS law.