The success of your IHSS appeal for protective supervision largely depends on one critical factor: whether you have persuasive documentation from objective sources. After reviewing countless administrative decisions, my main takeaway is that administrative law judges (ALJs) rely heavily on the objective documentation in the record when granting or denying IHSS appeals for protective supervision.
For example, in a recent decision I read, the ALJ explained:
“Overall, the administrative law judge finds the mother’s log, the [] Advocacy Hazards List, and the [Advocate’s] Medical Evaluation form do not provide persuasive and convincing evidence in contrast to the professional reports and assessments, including the social worker’s observations as reflected in her case history notes and protective supervision evaluation. Self-serving reports, circled boxes, and checked items simply are not persuasive. Rather, contemporaneous statements and third-party observations provide evidence which is more probative and reliable. Further, when forms are completed in anticipation of an appeal, such forms frequently fail to provide credible information.”
In this decision, the ALJ gives us a very important tip: if the source of documentation seems objective, meaning it’s not produced by a family member or advocate of the claimant, it will likely be considered “more probative and reliable.” This makes sense because ALJs have the difficult task of making sure that claimants are telling the truth, as there are occasionally cases of fraud.
Some examples of objective documentation include:
- Assessment of Need for Protective Supervision (SOC 821);
- Individualized Education Program (IEP) (if the applicant is a minor);
- Regional Center Documents, such as an Individual Program Plan (IPP) and Individualized Family Service Plan (IFSP) (if the applicant is a client of a regional center);
- Any other Evaluation or Report that shows the applicant attempts to engage in dangerous behaviors and lacks safety awareness based on a mental impairment.
- Letters from Potential Witnesses (e.g., therapists, teachers, neighbors, acquaintances, etc.)
I like to ask my clients if there is anyone that spends a considerable amount of time with their loved one/the applicant for protective supervision. Perhaps the applicant has a therapist, teacher, or caregiver that meets with the applicant several times per week. If so, then this potential witness has likely observed the applicant’s dangerous behaviors, which form the foundation of your appeal for protective supervision. Asking the therapist/teacher/caregiver to write a short letter describing his/her observations of the applicant’s dangerous behaviors could really go a long way because it’s the type of objective documentation that ALJs usually find persuasive. In cases where my client wanders away from home, I ask the caretaker if there are any neighbors who might have witnessed the claimant leave the house or walk in the street. If so, a short letter from the neighbor describing his/her observations could also be helpful.
The documentation you provide could very well make or break your case for IHSS protective supervision. This is because a family member’s testimony at the hearing may be given the least amount of evidentiary weight. It is indeed ironic that even though the parent or caregiver knows the child the best out of anyone in whole world, their testimony is usually not enough to win protective supervision. Understandably, this can be quite frustrating for families. I think there are two reasons for this. 1) A family member’s testimony, although informative, is “biased” in the sense that his/her agenda is to help win protective supervision. 2) The California Department of Social Services is concerned about cases of fraud. So although the vast majority of people seeking protective supervision are sincere and bring a legitimate appeal, the State must rely on objective documentation to ensure that fraudulent cases aren’t awarded protective supervision and given thousands of dollars each month.
Ultimately, providing documentation from a more neutral, third party seems like the best way of proving to the ALJ that your loved one’s need for protective supervision is deserving.
The information in this post is not legal advice, nor is it intended to be. You should consult an attorney for advice regarding your individual situation.
