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Via E-mail ord@dss.ca.gov &
Office of Regulations Development
California Department of Social Services
744
RE: Proposed
IHSS Hourly Task Guidelines
ORD
# 1205-21
To Whom It May Concern:
Protection & Advocacy, Inc. (PAI) is the
federally mandated protection and advocacy system for people with disabilities
in
As part of the IHSS Quality Assurance Initiative, SB 1104 requires the California Department of Social Services (CDSS), in collaboration with stakeholders, to develop hourly task guidelines for the IHSS program. The HTG is supposed to consist of a “range of time normally required for each supportive service task necessary to ensure the health, safety, and independence of the recipient.” Welf. & Inst. Code § 12301.2(a)(2). Once the regulations adopting the HTG are adopted, social workers are required to use them when assessing individuals’ needs and awarding hours. Welf. & Inst. Code § 12301.2(b). If a recipient needs time above or below the HTG range for a given task, an exception may be made, but the social worker must document the need for the exception. Welf. & Inst. Code
§ 12301.2(c)
The stated purpose of SB 1104’s requirement of the development of HTG, as reiterated several times by CDSS staff during stakeholder workgroup meetings, is to lessen current discrepancies in the number of hours awarded county-by-county, not necessarily reflective of need. See Welf. & Inst. Code § 12301.2(a)(1).
CDSS used information from the Case Management Information and Payrolling System (CMIPS) about how many hours of services recipients receive to determine the proposed ranges. Each range is supposed to be a “range of time normally required for each supportive service task necessary to ensure the health, safety, and independence of the recipient.” See Welf. & Inst. Code
§ 12301.2(a)(2). This data, according to CDSS does not accurately reflect hours of need. Nevertheless, CDSS continued to insist on using CMIPS data in determining the “normal” range of hours for each task.
At this point, we cannot determine whether the proposed ranges are accurate because we do not have accurate data on actual hours of need. The CMIPS data has not been validated because there has not been a real-time study.
PAI and other advocacy organizations suggested
that CDSS conduct a real-time survey of how long it takes to complete certain
tasks, such as the survey that was done in the State of
Based on the methodology used by CDSS to develop the proposed ranges, even assuming the CMIPS data was accurate, approximately 50% of the assessed tasks would necessarily fall outside the ranges. In order to come up with the ranges, CDSS took the interquartile range of authorized hours of each task for each functional index rank.[1] The interquartile range is a statistical term which means the difference between the 75th percentile and the 25th percentile. In other words, the top 25% and the bottom 25% are taken out of each category, with the remainder becoming the proposed ranges. That means that the proposed ranges only encompass 50% of the authorized hours. Again, there is no showing that this determination is based on actual need.
As CDSS staff correctly asserted throughout the planning process, counties are permitted to award hours outside of the proposed ranges. See Welf. & Inst. Code § 12301.2(c). In order to authorize hours outside of the proposed ranges, however, social workers must “document the need for the authorized service level.” Welf. & Inst. Code § 12301.2(d).
However, even though the goal of the HTG is to
create uniformity in how IHSS hours are assessed and authorized, there is not a
uniform procedure for granting exceptions.
We learned at Phase II of the
Throughout the process, we consistently expressed concern that the exception process would be too onerous to the already overworked social workers and that, as a result, they might be reluctant to grant, or ask for, an exception. Since we already know, social workers have such huge caseloads in some counties that annual reassessments are not getting done and new applicants are waiting six months or more to be assessed, in direct violation of federal and state law, it is foolhardy to believe that many social workers will be willing to do extra paperwork if they can avoid it.
On many occasions, Erik Fair, California Welfare Directors Association’s (CWDA) liaison to the IHSS HTG Workgroup, said the fact that social workers will need to document the need for exceptions will not create more work for social workers because they already have to provide such documentation. However, there is evidence to the contrary. In January of 2006, CDSS did a field test of the proposed regulations in six counties.[3] According to documents that CDSS prepared, of the 3,556 total needs assessed (consisting of 573 consumers), 1,636 fell outside the ranges. In the test, social workers documented reasons for only 142 of them. CDSS and CWDA explain this discrepancy by saying that the social workers were not required to document exceptions because they were not applying the proposed ranges.[4] Although we agree that the social workers should not have applied the proposed ranges, the field test nonetheless makes it clear that the proposed regulations would add a lot of additional work to already overworked social workers if a consumer needs time outside the proposed ranges, thereby giving social workers incentive not to recommend or authorize hours outside the proposed ranges.
In addition, as stated above, there are counties with months-long backlogs of IHSS applications, which are regularly violating the law because their social workers are overloaded. Adding this additional burden can only compound the problem.
The disability advocates on the IHSS HTG Workgroup advocated for a real-time field test to establish guidelines consistent with the statutory mandate -- a “range of time normally required for each supportive service task necessary to ensure the health, safety, and independence of the recipient.” See Welf. & Inst. Code § 12301.2(a)(2). Instead, CDSS chose to do a field test to validate the faulty guidelines already drafted.
The tested population in the field test was not representative of the full range of IHSS consumers and their needs. CDSS designed a field test which it readily admits is not statistically valid. There was virtually no attempt to secure a representative sample of IHSS applicants and recipients. Rather, it was based on the six counties that volunteered to participate.[5] Of the counties with more than 100 assessments and 100 reassessments in January 2006, CDSS randomly selected 100 assessments and 100 reassessments to participate in the field test. If a county had fewer than 100 assessments and/or 100 reassessments in January 2006, all of the assessments and/or reassessments participated in the field test.
A report on the results of the field test, which was distributed at the last IHSS HTG Workgroup meeting on March 15, 2006, says that “of the 3,556 total needs assessed for the 573 recipient sub-sample (recipient needs can be in all 12 service categories), over half (54 percent) of the total needs fell in the proposed ranges and 46 percent fell outside.” This means that almost half of the total needs fell outside the established ranges. For the consumers to receive the hours the social workers say they need, social workers will have to document and/or request exceptions. As mentioned above, for this sample of 573 consumers, social workers would have had to document 1,636 explanations for exceptions. In the field test, however, social workers documented only 142 exceptions.
Even though the social workers were not required to provide such documentation, the failure to document in the field test clearly indicates that the proposed regulations would add a lot of additional work to already overworked social workers. In addition, social workers have been trained to document everything and, yet, the social workers failed to provide adequate documentation over 90% of the time. It would be unlikely that, if and when the proposed regulations are adopted, the social workers would document exceptions.
Whether or not the field test was statistically valid, it would only prove that the proposed regulations create a large obstacle for social workers to grant the appropriate number of hours a consumer needs. Certainly, the field test does not show that the proposed regulations reflect the “range of time normally required for each supportive service task necessary to ensure the health, safety, and independence of the recipient.”
CDSS decided to develop ranges for each task
by functional index rank. PAI has some
concerns with this approach. As Joan
Boomer of CDSS admitted at the
While CDSS may have put in their social worker training a reminder that the functional index rank must be redetermined during every reassessment, it does not mean that the current practice will not continue. After all, the regulations have always required that county social workers look at the functional level every time they reassess a consumer and yet they typically have not done so.
During our workgroup meetings, CDSS staff has repeatedly said that the purpose of establishing HTG is not to lower consumers’ allotted hours. In fact, CDSS staff has said that, in some cases, hours may be increased as a result since the object is to have uniform guidelines. However, the proposed regulations, in the sections titled “handbook,” which contains mostly examples, emphasize how social workers can reduce a person’s hours, rather than increase them. We would urge that the examples be changed, and/or other examples be added, to include ways to increase hours.
For example, the handbook example following Section 30-757.132(c)(2) reads as follows: “A consumer who chooses to eat only toast and coffee for breakfast would require less time for cleanup than a consumer who chooses to eat eggs and bacon.” To make this example not infer that a social worker should look to reduce hours, the following sentence should replace the current example: “A consumer who chooses to eat bacon and eggs for breakfast would require more time to clean up than a consumer who chooses to eat only toast and coffee.”
The following are PAI’s comments to specific provisions in the draft regulations.
Section 30-757.132
In spite of our several requests, the definition of meal cleanup does not include “wiping off counters, stove, sink, table, etc.” In the past, CDSS has responded to this comment by saying that wiping off counters is covered under domestic services. However, domestic services are authorized to be done six hours a month total, which is meant to be done twice a month. Everybody, when they cook, has to wipe off the counters, stove, sink and table as necessary. Even after people wash dishes, they have to wipe the water that is spilled on the counter. If a person has to go two weeks without getting the counter wiped, it would create a health hazard that nobody at CDSS would accept. Not wiping counters, table, stove, sink and other dirty surfaces after use could lead to ants, roaches, rats, mice and mold.
There is a numbering problem in Section 30-757.132(c). There are two subsections (2).
Section 30-757.134
People with bowel or bladder incontinence generally need laundry done more often than one hour per week. Therefore, for clarity sake, we recommend that the following sentence be added to the end of both subsections (c) and (d): “Bowel or bladder incontinence shall result in an exception to this time limit.”
The handbook following subsection (d) states as follows: “It is expected that the typical provider will use a local laundromat during nonpeak-hour times and will utilize as many machines simultaneously as necessary for efficient time utilization.” It is not clear what “nonpeak-hour times” are. The proposed regulations should consider whether or not a consumer can find a provider to do laundry during “nonpeak-hours times.” For example, a consumer might go to school during the day and not want a provider to work when they cannot supervise them.
Section 30-757.14
Generally, it takes longer to feed somebody who uses a naso-gastrostomy (NG) or gastrostomy tube (G-tube), particularly with a slow pump rate. Therefore, PAI requests that the following exception for the HTG for feeding be added under Section 30-757.14(c)(4): (E) Time for feeding by NG or G-tube, particularly where feeding is done by slow pump rate.
Thank you for considering these comments to these proposed regulations.
Sincerely,
Fred
Nisen
Staff
Attorney
F:\DOCS\Fred\Benefits\ihss htg
reg comments.doc
[1] PAI
objects to establishing ranges by functional index rank. See
infra at page 5.
[2] The
[3] The validity of the field test is discussed below.
[4] CDSS was correct in not providing social workers with the proposed ranges because, otherwise, people would have been subject to the HTG prior to the enactment of the regulations, which would have violated SB 1104.
[5] The six
counties were: Humboldt, Kern, Lasson,