Protective supervision is available for both adults and minors (18 and under). Most of the requirements apply to all applicants, regardless of age. According to the California Department of Social Services’ (CDSS) current interpretation of the regulations, an individual must:

1. be nonself-directing due to a mental impairment or mental illness;
2. be likely to engage in potentially dangerous activity; and,
3. need 24-hour-a-day supervision in order to remain safely at home.

For minors, there is an additional requirement. The minor must also:

4. Need more supervision than a minor of comparable age who is not mentally impaired or mentally ill.

 

However, CDSS’ interpretation that “nonself-directing” is a separate eligibility requirement seemingly has no legal basis. The regulations state that an individual must be “nonself directing, confused, mentally impaired, or mentally ill only.” (MPP § 30-757.171.) If you have been denied protective supervision based on not meeting CDSS’ “nonself-directing” requirement, then you should contact a qualified representative to discuss an appeal.

1. What does “nonself-directing” mean?

Nonself-directing means “an inability, due to a mental impairment/mental illness, for individuals to assess danger and the risk of harm, and therefore, the individuals would most likely engage in potentially dangerous activities that may cause self-harm.” (All County Letter (ACL) No. 15-25.) Examples of nonself-directing behaviors include, but are not limited to:

• Touching the hot stove;
• Eloping/wandering off from home;
• Head-banging;
• Mishandling sharp objects;
• Climbing to high places;
• Misusing the microwave;
• Eating inedible objects; and
• Playing with electrical outlets.

Keep in mind that the definition of “nonself-directing” is very different in the IHSS context than its commonly understood meaning. Typically, nonself-directing refers to a person’s inability to make decisions without external control. For example, the term “self-directing” in the IEP context might refer to a child who is able to draw with markers without instruction or assistance.

The applicant’s mental functioning is evaluated by considering the extent to which the applicant’s cognitive and emotional impairments impact activities of daily living, and by considering the applicant’s memory, orientation, and judgment on a three-point scale (Ranks 1, 2, and 5).

• Memory refers to the ability to recall learned behaviors and information from the past. Examples of a severe memory deficit include forgetting to start or finish activities of daily living which are important to the individual’s health and/or safety; the individual cannot maintain much continuity of thought in conversation; the individual does not remember his age, address, day of the week, etc.;
• Orientation refers to an awareness of time, place, self and other people in one’s environment. Examples of severe disorientation include wandering off; inability to identify significant others or relate safely to one’s environment or situation; no sense of time of day; a lack of awareness of the purpose of the social worker’s visit.
• Judgment means the ability to make decisions so as not to put one’s self or property in danger, which entails an understanding of risks involved and consequences. Examples of severely impaired judgment include making decisions without regard to safety or well-being, such as an inability to comprehend safety around the stove.

Applicants with severe deficits in memory, orientation, and judgment are more likely to qualify for protective supervision than applicants with moderate deficits.

2. What does “likely to engage in potentially dangerous activity” mean?

An applicant is never required to suffer an actual injury in order to be eligible for protective supervision. Instead, the applicant must show a propensity for placing him/herself in danger. For example, an applicant with a documented history of nonself-directing behavior, who has a tendency to open the front door and start walking away, does not necessarily have to make it into the street in order for this to be considered potentially dangerous behavior.

However, the definition of “nonself-directing” already includes the requirement that the individual will most likely engage in potentially dangerous activities. Therefore, it is a bit confusing and repetitive for CDSS to include an additional requirement that the individual must be likely to engage in potentially dangerous activities. The guidance CDSS offers for this requirement is to consider whether the applicant retains the physical ability to put him/herself at risk of harm. (ACL No. 15-25.)

All protective supervision recipients must be physically capable of harming themselves. If the applicant’s physical condition makes it impossible to engage in any dangerous activities that would require oversight and intervention, then the applicant is not eligible for protective supervision. For example: A fully paralyzed person is not capable of putting himself/herself at risk of harm. On the other hand, a person who is confined to bed may still have the physical ability to pull at his/her gastrostomy tube, which would be dangerous and require protective supervision.

3. How do I fulfill the 24-hour-a-day requirement?

Of course, no applicant engages in potentially dangerous activity every minute of every day. The 24-hour-a-day requirement means that the dangerous behaviors are frequent and unpredictable so that constant oversight is necessary.

For example, if a child repetitively touches a hot stove, it would likely be considered a dangerous behavior. If, however, the child only touches the hot stove when the parent is cooking, then it may well be considered a predictable behavior (as the parent knows when the child may attempt the behavior). As a result, this particular dangerous behavior might not qualify for protective supervision, because it likely does not require 24-hour-a day oversight. However, in a situation where the child also knows how to turn the hot stove on by himself/herself, so that the child touches the hot stove at frequent, random times, then this dangerous behavior would likely satisfy the 24-hour-a-day requirement.

Note that it is CDSS’ policy that leaving an applicant alone for some fixed short period of time, is not, by itself, a reason to deny protective supervision.

4. How is protective supervision determined for minors?

As previously explained, in addition to the trio of requirements noted above, a minor must also need more supervision than a neurotypical child of the same age in order to qualify for protective supervision. “More supervision” means that the child must require more time and/or more intensity of supervision than a neurotypical child of the same age.

One way to determine whether the applicant’s supervision requires “more intensity” is to evaluate the nature, frequency, and duration of the interventions necessary to prevent injuries and compare those to the interventions necessary for a neurotypical child. Relevant issues to consider include, but are not limited to: how frequently the child attempts dangerous behaviors compared to a neurotypical child, whether the types of dangerous behaviors are similar to those of a neurotypical child, and how closely the parent needs to supervise the child. For example, a parent might let a neurotypical child play safely and independently in a different room for an extended period of time, whereas a parent of a nonself-directing minor of the same age may have to be significantly more vigilant in order to prevent the child from harm.

In addition, the child’s cognitive impairment(s) might affect the intensity of supervision needed. A nonself-directing child usually requires considerably more intervention from a provider than a neurotypical child. Note that there is no minimum age requirement for protective supervision.

Exceptions to Protective Supervision Eligibility

Protective supervision is not available in the following situations:

• For friendly visiting or other social activities;
• Routine childcare;
• When the need is caused by a medical condition and the form of the supervision required is medical;
  • For example, an applicant with diabetes is not eligible for protective supervision to help when the applicant has an episode of hypoglycemia;
• In anticipation of a medical emergency;
• To prevent or control anti-social or aggressive behavior directed toward others;
  • For example, hitting one’s siblings or peers.
• When an applicant deliberately intends to harm him/herself.

To apply for Protective Supervision, first complete the Application for In-Home Supportive Services, also known as SOC 295. The application is also available in other languages, including, but not limited to: SOC 295 in Spanish; SOC 295 in Chinese; and SOC 295 in Armenian.

Next, submit the application to your county IHSS office.

After you submit your application for protective supervision, your county IHSS office will contact you to schedule an assessment. Generally, the county must process your application and mail you a notice of action within 30 days from when you completed the application.

If you disagree with the county’s denial of protective supervision, you have the right to appeal. An appeal means that an administrative law judge will review your case at a hearing, unless the county offers you a conditional withdrawal in order to reassess the applicant.

It is important to remember that you have 90 days from the date of the Notice of Action to submit your appeal. You can request your hearing to take place in person or over the phone. If you prefer speaking in a language other than English, specify which language in your request. You are entitled to an interpreter at the hearing, free of charge.

If you are already receiving protective supervision hours and the NOA ended your eligibility, your request for a hearing should be made within 10 days of the notice, before the NOA becomes effective. This is called “aid paid pending” and ensures that you maintain the same number of IHSS hours until the appeal is decided.

You can appeal your denial of protective supervision by:

• Online Appeals Account: https://acms.dss.ca.gov/acms/
• Phone: Call the State Hearings Division at 1-800-952-5253. For hearing or speech impaired persons who use TDD, call 1-800-952-8349.
• Mail: You can simply fill out the hearing notification page of the Notice of Action and mail it to the State Hearings Division:

California Department of Social Services
State Hearings Division
P.O. Box 944243, Mail Station 6-16-50
Sacramento, CA 94244

The county must send you its statement of position at least two working days before the hearing. If the county fails to do so, you can ask the State Hearings Division to postpone the hearing. You can also request a postponement due to sudden and unexpected emergencies, among other reasons.

Prior to and during the hearing, you have the right to examine the county’s nonprivileged information that it used in making its decision to deny protective supervision.

If you believe that the administrative law judge made an error in the decision to deny you protective supervision, you have the right to request a rehearing within 30 days of the decision. All rehearing requests are made to the California Department of Social Services, State Hearings Rehearing Unit. The reasons to request a rehearing include:

1. The decision is inconsistent with the law;
2. The decision is not supported by the evidence in the record;
3. The decision is not supported by the findings;
4. The decision does not address all of the claims or issues raised by the parties;
5. The decision does not address all of the claims or issues supported by the record or evidence;
6. The decision does not set forth sufficient information to determine the basis for its legal conclusion;
7. Newly discovered evidence, that was not in custody or available to the party requesting rehearing at the time of the hearing, is now available and the new evidence, had it been introduced, could have changed the outcome; and,
8. For any other reason necessary to prevent the abuse of discretion or an error of law.

Your request for a rehearing should:

• List the date you received the decision;
• Explain why a rehearing should be granted;
• Request an interpreter in your preferred language, if applicable; and,
• If you want to submit new evidence:
  • describe the new evidence;
  • explain why you did not provide it for the hearing;
  • explain why you think the new evidence would change the decision; and,
  • submit a copy of the new evidence, if possible

You can submit your rehearing request by:

• Online Appeals Account: https://acms.dss.ca.gov/acms/
• Email: SHDRehearings@dss.ca.gov
• Fax: (833) 281-0908
• Mail: (Allow at least five days for mailing. Keep your originals.)

State Hearings Division
PO Box 944243, MS 21-36
Sacramento, CA 94244-2430

Upon receipt, the State Hearings Division must grant or deny your rehearing request within 35 working days.

It can be challenging to secure protective supervision. The State of California and its counties have an interest in ensuring that only the most qualified applicants are approved, because protective supervision is the most expensive IHSS program. Although applicants can successfully secure protective supervision on their own, many applicants are denied protective supervision due to a lack of proper documentation and understanding of the eligibility requirements. In some cases, the county misinterprets the law or facts. For example, a county social worker might say that the applicant is too young to receive protective supervision, even though there is no minimum age requirement. For many applicants, it can seem like an uphill battle to secure protective supervision.

You can hire an attorney to help you secure protective supervision at any stage of the process, from assessment to appeal to court review. The California Department of Social Services allows you to have an authorized representative at your hearing, whether an attorney, advocate, family member, or friend. Your authorized representative must fill out this form to represent you at the hearing. If you’re interested in hiring an attorney but don’t want to pay the fees unless you win, make sure you find an attorney that offers a contingency fee.