Access Living Response on DHS Revised Proposed HSP Overtime Rule Under Consideration by JCAR

As of January 5, 2017, the Illinois Department of Human Services (DHS) proposed further changes to its proposed administrative rule on overtime for the Home Services Program (HSP).

Given that the revised proposed rule was only posted online four business days before the next JCAR meeting, we strongly urge JCAR to extend the Second Notice period for another 45 days for full consideration by the public.

At this time, we also urge that DHS and JCAR recognize that the revised rule as published needs more work in order to prevent negative consequences for HSP customers with disabilities and their Individual Providers (IPs). We urge DHS to continue to revise the rule; at this time we feel JCAR should object to it.

The below chart provides Access Living’s initial reaction to the proposed rule, pending additional time for review. We look at the updated rule and its impact on the HSP customers, who are people with disabilities who meet an institutional level of care but who live in their own homes.

Revised HSP Rule
Pro: Weekly cap on hours worked by Individual Providers (IPs) is raised from 40 to 45 hours per week
Con: Hundreds of HSP customers will still need to find additional IPs willing to work a few extra hours; individualized nature of HSP work makes it difficult to find and retain new IPs. Access Living continues to prefer that HSP operate without caps so as to address individial need.

Pro: Category A and B Exceptions have been replaced by five new Exceptions that address specific concerns HSP customers had brought forward: lack of local IPs, severe/complex needs, IP unable to work, out of town situations, emergencies.

Con: For lack of local IPs -- how will the 45 mile radius be determined? For severe/complex needs -- How will DHS determine who has this level of need? Does this place more burden on the HSP customer? For IPs unable to work -- what happens when the backup IP is not immediately available? Will IPs be able to work during the appeals period, in the case of unfunding? For the 120 day initial exception period, with a 120 day extension, there needs to be a guarantee that the situation will be resolved. For the out of town exception -- A 45 day prior approval period sounds extremely excessive, especially given that travel plans may occur on an unexpected basis (as in the death of a relative). Two weeks of out of town time is also arbitrary, and paying for only one IP also may not make sense if the HSP customer must travel with two IPs. For the emergency need exception -- DHS should resolve whether extra hours worked without approval will count against an HSP customer’s service plan. Also, how is an emergency defined? How long will it take to decide what is an emergency? Since DHS only operates during office hours, what if an emergency happens during off hours?

Pro: The five new exceptions will operate on DHS’ assessment for a pre-approval basis for one year, or upon the date of the next assessment. This relieves HSP customers of the burden of waiting for weeks for approval of overtime exceptions.
Con: We are still concerned about the level of bureaucracy HSP customers will face as they try to work with their DRS counselors to document instances of overtime. It remains unclear as to how and whether HSp customers will be required to document and justify instances of overtime. The revised rule refers to a form, but what this form looks like is unclear.

Pro: HSP customers are now required to have on IP for every 45 hours on their service plan, not 35 hours. This will provide some relief to some customers.
Con: This requirement still does not ensure that the HSP customer can locate and hire qualified IPs within the 45 mile radius. This will continue to be a major issue unless DHS structures IP support and benefits to attract new workers.

Instead of being unfunded and barred from working for HSP after three unjustified overtime occurrences, IPs will be suspended for three months.
Con: Suspension of an IP has, for the HSP customer, the same effect as a ban. In practical terms, this is a sudden loss for the HSP customer, who must now scrable to work with any backup IPs available, and find new IPs to cover hours that the backup IP cannot. Backup IPs tend not to be available on call or 24 hours a day. DHS needs to ensure there is immediate coverage for an HSP customer whose IPs are suspended.

Access Living also retains our objection to the strikeout of language that assures consumer control, and replaces it with language requiring that the HSP customer must be deemed able to manage their IPs. The language does not frame who gets to decide whether an HSP customer is fit to manager their IPs, and what process is used to determine this. That language is as follows :

When a Customer seeks to hire an Individual Provider, the following requirements must be met: A customer has complete discretion in which Personal Assistant he/she wishes to hire, as long as the PA meets the conditions of Section 684.30. A customer is responsible for all stages of the interview and selection process, including the decision of which candidates to interview, the scope of the interview, whether to request a conviction background check, and the timing of the selection decisions. If requested by the customer, the counselor shall assist in identifying available resources for referral of Personal Assistant candidates for the customer to interview.
1) The Customer must have the ability to manage the Individual Provider in all aspects of the employment relationship.
A) If the Customer is determined to be able to manage an Individual
Provider, he or she is responsible for identifying, interviewing,
hiring, managing, disciplining and ending the employment relationship with the Individual Provider.

We feel the above violates the spirit of the Illinois Home Care Consumer Bill of Rights. For follow up, please contact Amber Smock at Access Living, at (preferred) or (312) 640-2191.

Amber Smock
Director of Advocacy