If you have been trying to receive benefits for IHSS for your child with special needs like autism or Down syndrome, a denial can be stressful. As a parent, 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 disabled children. This process provides you with another chance to prove that your family qualifies for financial assistance.
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.
To determine whether you should file an appeal you should ask the question: Is the county decision appropriate, and are there laws and medical records to support the appeal?
If your answer is yes, here is what you need to do:
- If you are already receiving IHSS services, file the request for 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 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 (i.e., 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 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 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 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 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 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.
- 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.)
- 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, 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.
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.