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November xx, 2016

xxxxx
xxxxxxx
xxxxxxxxxxxxx
Dear xxxxx:
The purpose of this letter is to respond to recently submitted written comments concerning the
proposed Home Services Programs (HSP) overtime rules for 89 Ill. Adm. Code 676, 89 Ill.
Adm. Code 677, 89 Ill. Adm. Code 684, and 89 Ill. Adm. Code 686. The proposed rules were
published in the Illinois Register dated August 19, 2016.
Thank you for taking the time to provide written comments. Your comments illustrate the
importance of ensuring continued sustainability of program benefits that meet the needs of our
customers, save taxpayers money, create jobs in Illinois, and serve our States most vulnerable.
On January 1, 2015, the U.S. Department of Labor promulgated new rules concerning payment
of overtime to domestic service workers under the Fair Labor Standards Act (FLSA). This new
rule required the payment of overtime to any individual provider under the Illinois Department of
Human Services (IDHS) Division of Rehabilitation Services (DRS) Home Services Program
(HSP). The HSP provides in-home care for over 26,000 individuals with disabilities. Without a
thoughtful policy in regards to the use of overtime by individual providers, the State of Illinois
would be required to pay at least an additional $14 million per year for HSP. IDHS engaged in a
careful analysis to draft an overtime policy that balances the needs of current recipients of home
health care while ensuring the continued stability of HSP given these new costs.
The proposed rulemaking took, among others, the following actions:
1.

Part 676. Adds the definitions of individual provider, overtime, pay period, travel
time, and work week and revises the definition of customer.

2.

Part 677. Amends the language regarding the HSP customers responsibilities to provide
additional clarification on the customers role as the employer and the customers
responsibilities in regards to the employment relationship with the individual provider.

-23. Part 684. Amends language regarding the required content of a customers service plan
and provides clarification on both IDHS and customer roles in regards to service
providers.
4. Part 686. Adds new language regarding the individual providers overtime and travel time
requirements.
In the comment letters received by IDHS, many of the organizations and individuals raised
similar points of concern. Those comments are addressed in the sections below.
Limitation on Allowed Overtime Hours
The primary concern raised was in regards to the limit on the number of hours an individual
provider could work per week. As originally proposed, the rule stated that an individual provider
is limited to working 40 hours per week unless certain circumstances require the provider to
work more than 40 hours in a week. Many of the comments indicated that this cap on the
number of hours per week was too limited and would lead to many HSP customers being placed
in nursing homes.
While this fear was not realized during the months that IDHS had imposed this limit, IDHS
recognizes that limiting the number of hours per week to 40 may be cumbersome given that
approximately 89% of service plans call for 45 or fewer hours of services each week. Therefore,
IDHS raised the number of hours an individual provider can work to 45 hours per week without
having to request an exception. This adjustment will provide more flexibility for providers and
customers to set schedules that meet their needs.
IDHS believes that a limit of 45 hours worked per week by individual providers balances the
needs of HSP customers while responsibly considering the budgetary impact for the future
sustainability of the program.
Overtime Exceptions
While all parties agree that there should be exceptions to the limit on the number of overtime
hours that can be worked by an individual provider, many individuals and organizations
expressed concerns with the process in the rule as it was originally proposed which included only
two exceptions that were reviewed after the overtime was already worked. The comments were
focused on the inflexibility for HSP customers and individual providers regarding approval and
the uncertainty about a process that approves or rejects overtime after it has occurred. The
comments also raised concerns about the narrow scope of the criteria included in the Category A
exception, timeliness of the approvals, documentation required for an exception, and vagueness
of the overall process.
IDHS changed from a post-approval exception process to a pre-approval exception process for
overtime. Also, IDHS added five categories of exceptions for overtime to account for the
individual or emergency circumstances of the HSP customers or the Individual Providers. These

-3categories, which will replace the Category A and Category B exceptions, are as follows:
Exception Category
Provider Capacity

Unique/Complex
Needs

Provider Unable to
Work

Out-of-Town
Situations

Emergency Need

Description
No qualified IP within 45
miles of the customers
service location is able to
provide needed services.
The customers health and
safety
would
be
compromised by adding
additional IPs to the service
plan.
An IP quits, is unfunded, no
longer meets qualifications,
or has expired credentials.

A customer requires care to


ensure their health and
safety while out-of-town,
and it is not feasible to bring
additional IPs.
An urgent need for care
arises and exceeding the
limit is unavoidable without
risking the health and safety
of the customer. This may
include unexpected tardiness
of the next IP or illness or
other circumstances when an
IP is unable to provide
services on a scheduled day.

Approval Period
May approve up to 365
days or day of next
reassessment whichever
is sooner.
May approve up to 365
days or day of next
reassessment whichever
is sooner.

Timing of Approval
Pre-approval

May approve up to 120


days. This period may be
extended up to an
additional 120 days if the
provider is awaiting
credentials or necessary
training.
May approve up to 14
days per year for one IP.

Pre-approval when
able; may require
post-approval as
needed.

May utilize up to 4 hours


per pay period with a
maximum of 30
hours/year.

No approval

May approve up to 4
additional hours each pay
period with a maximum
of 30 hours/year.

Pre-approval; may
require post-approval
as needed.

Pre-approval

Pre-approval

Because 89% of Home Services Program customers have 45 hours or fewer per week in their
services plans, increasing the standard limit for weekly hours from 40 to 45 means this 89% will
not need any exceptions to cover all the hours in their plans. For the remaining 11%, the
additions of overtime pre-approval and a broader range of exceptions will provide the flexibility
to address their unique circumstances while maintaining their security and ensuring the longterm sustainability of the Home Services Program.
Unjustified Overtime and Sanctions
Some comments received expressed concerns with the compliance language in the proposed rule.
Specifically, the comments addressed limitations on the customers self-direction as the coemployer of the Individual Provider. Also, IDHS received comments regarding the
consequences of non-compliance. IDHS believes that the customer does have a right of selfdirection because the customer is ultimately responsible for the actions of the Individual

-4Provider. Moreover, the consequences of non-compliance are in place to ensure that the
customer is receiving the highest quality of care.
Taking into consideration the comments received, IDHS made the following changes:
When a third occurrence of unjustified overtime or non-compliance occurs, the IP will
receive a three-month temporary suspension instead of being notified that s/he can no
longer work under HSP.
After the IP has been suspended three times, the IP will be terminated from the HSP.
If an individual provider was terminated, then s/he is eligible for review after 12 months
for reinstatement unless s/he was terminated due to fraud, abuse, neglect or exploitation.
Back-up IP
IDHS received comments regarding the requirement that a customer must have a back-up IP.
The purpose of this requirement is to ensure that the customer always has a back-up provider in
case the primary provider is unavailable to work. If an IP has to call in sick or is unable to attend
a shift due to an unforeseeable emergency, the back-up provider can cover the shift so that the
customer is continuing to receive care.
Customers Management of the IP
IDHS received comments regarding the role of the customer in managing the IP and the removal
of the words controlling in the employment relationship. The proposed changes in 89 Ill.
Adm. Code 676.30(b)(3) and 89 Ill. Adm. Code 677.200(g) establish that the customer is
responsible for the IP. IDHS believes that this change in language is consistent with the purpose
of ensuring that the customer has the right of self-direction. Moreover, the language affirms that
the customer is ultimately responsible for locating, hiring, directing, evaluating, supervising, and
if necessary, imposing disciplinary action and consequently terminating the IP.
IDHS also received comments regarding the discretion given to the HSP counselor in procuring a
service provider under 89 Ill. Adm. 684.20. IDHS believes that the counselors have the expertise,
knowledge, and training to assist customers in making sure that they are receiving the
appropriate level of service. Even though counselors have this responsibility, it is still the
customers duty to hire the individual provider and to manage the employment relationship.
Appeal Rights
IDHS received comments regarding the right for a customer or an IP to file an appeal under
Section 686.1570(b)(9). The customers right to file an appeal has not been diminished under the
proposed rulemaking. If a customers service plan was changed, then the customer has the right
to file an appeal under 89 Ill. Adm. Code 510. Also, the customer has the right to file an appeal
if an overtime exception is not approved under Section 686.1530(b). Moreover, IDHS has not
proposed amendments to the customers appeal rights under 89. Ill. Adm. Code 510.
The IP does not have the right to file an administrative appeal because the HSP customer can

-5only file an appeal contesting an action taken by the HSP program against the customer.
However, as explained above, IP(s) can request a review for reinstatement if the individual
provider was terminated.
Program Requirements
IDHS received comments regarding defining what is meant by complying or following program
requirements in various parts of the proposed rulemaking including 89 Ill. Adm. 677.200(g), 89
Ill. Adm. Code 684.10, and 89 Ill. Adm. Code 686. IDHS has amended the language so that it
clearly refers to HSP requirements.
IDHS believes its changes to the proposed rule address the concerns expressed by various parties
and organizations. Thank you again for your interest and review of these proposed rules.
Sincerely,

Tracie Drew, Chief


Bureau of Administrative Rules