Have you tried to get In-Home Supportive Services (IHSS) for your child with special needs, but you’ve been denied? When you are a parent of a child with a disability like autism or Down syndrome, an IHSS denial can be stressful. You know you need financial help to take care of your child who needs supervision 24 hours a day. You’ve had to cut your hours or you can't work at all because you have to stay home.
Protective Supervision, part of the IHSS program, can be of great value for children who need to be observed 24 hours per day to protect them from injuries, hazards, or accidents.
If you have been denied benefits, you can appeal this decision. An appeal system known as a due process hearing is an excellent tool for parents who have been denied benefits for their children with disabilities. This process provides you with another chance to prove that your family qualifies for financial assistance through IHSS.
But the process for challenging a denial can be daunting because there are timelines and a hearing involved. The matter can also involve the courts.
The following are the specific steps you need to take in order to appeal your IHSS denial:
If you are already receiving IHSS services, file the request for the appeal during the 10 calendar days BEFORE the Notice of Action is effective. The benefits will not change until there is a hearing and a decision is issued.
A request for a hearing MUST be filed within 90 calendar days after the date of the county action or inaction. A written request for a rehearing must be filed within 30 calendar days of receipt after the decision is received. A request for a state hearing may be written or oral and there is a request form on the back of the Notice of Action. The request for a state hearing should include: the aid program involved (IHSS), the reason for the disagreement with the county action, if an interpreter is needed and what kind, and a copy of the applicable Notice of Action.
The IHSS denial challenge process always involves witnesses and evidence. Gather information about how the county IHSS worker determined the hours you were authorized.
Ask your case worker for a copy of the latest needs assessment forms. These county forms will include notes about why the hours were or were not authorized. Also ask for a copy of the most recent SOC 293 form. The SOC 293 forms include information on the functional ranking about what you can and cannot do. If you are challenging a reduction, ask for copies of both your new and your old county assessment forms and your new and old SOC 293 forms.
Ask for a copy of the sheets in your file where notes were made about contacts and visits with you over the last year.
Ask your IHSS case 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.
Ask your IHSS case worker for copies of any doctor or medical reports in your file and for copies of any paramedical forms.
After you file an appeal, you will receive information from the state about your hearing rights and they will also tell you the address and phone number of the county appeals worker. The county appeals worker is 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 their decision not to authorize retroactive benefits.
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 allowed to look at your file at any time whether or not you have a hearing pending.)
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.
During the hearing, 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, 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 what is stated 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 you need more hours. The best evidence is from the people who provide care and who kept a record of the time it takes to care for your child.
Witnesses may include — in addition to the IHSS recipient — past and present IHSS providers, the 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.
If this process sounds daunting and you feel you need help, you can always reach out to us. Our advocates can lead you through everything, as well as provide resources to better assist you and your special needs child.
Go to http://www.americanadvocacygroup.com or call us directly at (877) 762-0702, and we will assist you in getting your child the funding he or she deserves.
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