If you are challenging a
reduction in hours or a termination of services, you must request a fair
hearing within the 10 days, before the notice of action is effective, in order
to continue receiving all your hours until the hearing is over.
If you believe you have not
been allowed enough hours, you may challenge the county’s decision at any
time. However, the Administrative Law
Judge (ALJ) may only give you an increase in hours for up to the three months
prior to your hearing request. If you
ask for a hearing April 15, the ALJ can go back to January 1. MPP
22-009.12. (You always have the right to
ask your county worker to reassess you to see if he or she agrees you need more
hours. If your county worker agrees,
then you do not need to go to a hearing.)
If the county denies or intends to change
your IHSS services, it must give you a written notice. The notice must include the following:
(1) The action the county intends to take,
(2) The reasons for that action,
(3) The specific regulations supporting the
action,
(4) An explanation of the right to request a
hearing, and, if appropriate,
(5) The circumstances under which aid will be
continued if a hearing is requested.
Generally, the notice of action must be
mailed to you at least 10 days before the effective date of the action. The 10
days does not include the date of mailing or the date that the action is to
take effect. MPP 22-001(a)(1);
22-001(t); 22-071; 22-072; 30-009.236
If you are already receiving IHSS
services, file the request for appeal
during the 10 calendar days BEFORE the Notice of Action is effective. If the request is filed within
this 10-day period, your benefits will not change until there is a hearing and
a decision issued. See Aid Paid
Pending section below. MPP 22-072.5
A request for hearing MUST be filed within 90 calendar days after
the date of the county action or inaction.
However, if the request is filed after the 10-day period mentioned
above, the benefits will NOT continue pending the hearing. If you win at hearing, the judge may order
back payment. The date of action is the date the notice of action was mailed by
the county. MPP 22-009.1.
Note: the dare of the action is different
than the effective date of the notice.
To request a hearing:
Fill out the back of the
notice of action form and send to the address indicated, or
Send a letter to:
IHSS Fair Hearing
State Hearings Division
Department of Social Services
Give your name and state
identification number and say that you want a fair hearing because you do not
believe you have been allowed the hours you need. If you need the hearing to he held in your
home, include that in your request. If
you need an interpreter or if you need an interpreter for someone who will be
testifying (such as your IHSS worker), include that also in your request.
If asked, the county must furnish a
duplicate copy of the Notice of Action if the back of that form is used to
request a hearing. MPP 22-004;
22-071.5
The written request is filed with the CWD.
The address is on the Notice of Action form with the information about the
right to request a hearing. For record keeping purposes, it is best to file a
written request. MPP 22-004.2
You can fax the letter (in
addition to mailing it) to 916-229-4110.
OR
Call the toll free number at
800-743-8525 to request a fair hearing.
Remember to keep the county informed of any
change of address during the appeal process so notices for the hearing are
received. And, remember the deadlines for filing.
Except under limited conditions, when a
timely request for a state hearing is filed within the 10 calendar days before
the notice of action is effective, IHSS will continue at the same level the
person would have received if the county had not taken the action. This aid
paid pending the decision is not to be considered an overpayment even if the
decision is in favor of the county. MPP
22-072; 22-073; 30-768.111
If adequate notice was not given to you as
required and aid was discontinued, suspended, canceled, terminated or reduced
then the CWD must reinstate the benefits retroactively. MPP 22-049.523
Aid paid pending will stop when you
withdrawal or abandon the request for a state hearing.
The State Hearings Division will mail or
deliver to you and the county a written notice of the time and place of the
hearing not less than ten days prior to the hearing. You may waive the 10-day
requirement and accept a shorter time period. MPP 22-045.3
State hearing requests involving issues of urgency
that DSS State Hearings Division deems necessary may be scheduled on an
expedited basis. (All
If you are unable to attend the hearing at the hearing
location because of poor health, the hearing may be held in your home or in
another place agreed to by the county and you.
A hearing may also be conducted by telephone or video conference instead
of an in-person hearing if you agree. MPP
22-045.1
After you file an appeal, you
will receive from the state information about your hearing rights and telling
you the address and phone number of the County appeals worker, the person who
will represent the County at the hearing.
Your IHSS file is in that office.
Many appeals workers try to resolve a dispute without a hearing. The appeals workers are often more
experienced and knowledgeable than the people you've dealt with in the local
office. The appeals worker may call you
about a "conditional withdrawal" so that a new assessment can be
done. If you agree to a conditional
withdrawal of your appeal, you have a right to have the hearing rescheduled if
you disagree with the new assessment or a decision not to authorize retroactive
benefits.
Make clear to the
appeals worker during the conditional withdrawal process that the effective
date of any retroactive benefits will be based on the effective date relating
to the original appeal. Get this
assurance in writing as part of the conditional withdrawal. This concern is based on the State Hearings
Division’s recent policy to treat appeals of redeterminations following
conditional withdrawals as new hearings requests. (Training Bureau Note, Item
05-07-01A, July 6, 2005.)
The conditional withdrawal agreement must
be in writing and signed by both the county and the complainant. The agreement
is required to provide that the actions of both parties will be completed
within 30 days from the date the agreement is signed by both parties and
received by the county. MPP
22-054.211(b)(3).
Upon request, the County Welfare
Department (CWD) must allow you to examine the case record during regular
working hours. You have this right both prior to and during the hearing. MPP 22-051.1; .2 Also, when requested, the
county is required to give copies of specific policy materials, including
regulations, necessary for you or to determine whether a state hearing should
be requested or to prepare for a state hearing.
These copies must be without charge or at a charge related to the cost
of reproduction. MPP 22-051.3
Get together information
about how the
a.
Ask your worker for a copy of the latest needs
assessment forms. These county forms
will include notes about why hours were or were not authorized. Also ask for a copy of the most recent
iii. Ask for a copy of the sheets in your file where notes were made about contacts and visits with you over the last year.
iv. Ask your IHSS worker for a copy of the County's time-for-task guidelines. Remember, time-for-task guidelines may not be used for personal care tasks.
v. Ask your worker for copies of any doctor or medical reports in your file and for copies of any paramedical forms.
♦ ♦ ♦
Note:
Manual of Policy & Procedures
♦ ♦
♦
vi. If IHSS reduced your hours, ask your IHSS worker for copies of the regulations listed on your reduction notice.
vii. The IHSS regulations are in the Department of Social Services’ Manual of Policy and Procedures. If you have access to the Internet, you can find the IHSS regulations at www.dss.cahwnet.gov/ord/CDSSManual_240.htm. There are four entries for the Division 30 regulations. Skip the first entry. The IHSS regulations start about 5 pages into the second entry, continue through the third entry, and finish up in the fourth entry. You also can get the All-County letters at www.dss.cahwnet.gov/lettersnotices/AllCountyL_542.htm. All-county letters are directives the state Department of Social Services sends to the counties. The letters cover a lot of programs; only a few of the letters will be about IHSS.
The County’s position statement summarizes
the facts of the case and the regulatory justification for the CWD action. It
also includes copies of documentary evidence and a list of witnesses which the
county intends to use during the hearing.
You are entitled to the County's statement of position
two business days before the hearing. If
your hearing is on Friday, you are entitled to the position statement Wednesday
morning. (You are entitled to look at your file at any time whether or not you
have a hearing pending. See the note above under paragraph 2.)
The County's statement of
position will help you identify other evidence and witnesses you may need. If you do not get a copy until just before
the hearing, you can ask to have the record left open to submit additional evidence
(such as letters or statements) to respond to any statement in the County's
position paper. Even if you get the
County's statement of position in time, you may still ask to have the hearing
record left open so that you may submit additional evidence.
Although
it is not necessary for you to have your own position statement at hearing, our
experience has shown that this level of preparation will enable you to present
a stronger case. Attached as F of this
publication is a sample position statement involving IHSS services that you may
wish to draw upon as guidance in drafting your position statement.
Postponements are granted under limited
conditions. The ALJ may postpone a hearing at any time before the hearing or at
the request of the county at the hearing.
Reasons that establish good cause for a postponement by you
include:
(1) Death in the family.
(2) Personal illness or injury.
(3) Sudden and unexpected emergencies
which prevent you or your authorized representative from appearing.
(4) A conflicting court appearance which
cannot be postponed.
(5) When the county, when required, does
not make a position statement available to you not less than two working days
before the date of the scheduled hearing.
(6) When the county has modified the
position statement after providing the statement to you and you waive the 90-day period within which a decision must be
issued. MPP 22-053.1; 14; 16;
22-073.253
Failure of you or your authorized
representative to receive the hearing notice is not good cause if the reason is because the CWD or DSS
was not notified of a change of address. MPP
22-054.222(a)(1)
The County goes first and says why your hours were cut
or why you should not have the additional hours you believe are needed.
The hearing will involve the
presentation of evidence (testimony by witnesses, letters, diary log, medical
reports) about your needs in the service category areas where you and the
county disagree. The evidence should
explain what you need, how long it takes to provide the service, the reason you
need more time than that set out in the assessment or the County guidelines,
and what risks you may be exposed to if you do not receive the level of
services requested. IHSS fair hearings
are informal. The important thing is to
explain why more time is needed. The
best evidence is from the people who provide you care and who kept a diary
record of the time it takes.
Witnesses may include — in
addition to the IHSS recipient — past and present IHSS providers, regional
center counselor, friends and family, etc.
For each witness, list the points you want that witness to make and
cross off each point as it is made.
You
should be prepared to submit whatever documentary evidence you wish the judge
to consider at the hearing. Also, you
should prepare in advance a list of questions to answers you want the judge to
hear from your and the county’s witnesses.
Although not necessary, we recommend that you also prepare in advance
opening and closing statements to make at the hearing.
A copy of all documents submitted by
either you or the county at the hearing is required to be made available to
both parties. Be sure to have copies of all your documents for the hearing
officer and the CWD. The CWD is required to provide copies of all documents to
you free of charge. MPP 22-049.8
As soon as the county receives the
decision, it must start action to comply with the decision. MPP 22-078.1. You may contact DSS, orally or in
writing, you are dissatisfied with the compliance. DSS must take appropriate action to ensure
compliance with the decision. MPP
22-078.4.
For more help, call the
regional center (if the IHSS recipient is a client), an independent living
center, a legal aid program, senior advocacy program, the DISABILITY RIGHTS
CALIFORNIAtoll free number (800) 776-5746, or the Western Law Center for
Disability Rights (213) 736-1031. To
find out the telephone number of the senior advocacy program in your area, call
your county office on aging or the State Department of Aging at (800)
510-2020.
If the county is seeking to
reduce your hours or to eliminate a service (such as protective supervision),
the county has the burden of showing how you have improved or how changed
living circumstances mean you need fewer hours.
Call DISABILITY RIGHTS CALIFORNIAto receive a copy of a memo describing
the county’s burden.
For more information about
the hearing process, visit the website of the State Hearings Division at www.dss.cahwnet.gov/shd/default.htm