ODP Updates Operational Guidance Due to Dunkelberger v. DHS Court Decision

The Office of Developmental Programs (ODP) has shared ODPANN 26-067 and an updated FAQ to provide additional information and operational guidance as a result of the Dunkelberger v. DHS court decision. This communication obsoletes:

• ODPANN 23-041 – Maximum Number of Hours per Week of In-Home and Community Support and/or Companion Services that Relatives and Legal Guardians May Provide; and
• ODP Communication Memo 068-16 – Scheduling Support Service Workers to Work More than 40 Hours per Week in the Consolidated and P/FDS Waivers.

ODP updated the two required agreements for participation in participant-directed services in response to the Dunkelberger decision, specifically:

• The Common Law Employer (CLE) Consent Form used in the Vendor Fiscal/Employer Agent (VF/EA) model; and
• The Managing Employer (ME) Agreement Form used in the Agency With Choice (AWC) model.

The updated agreements clarify:

• CLEs and MEs are responsible for developing and managing Support Service Professionals’ (SSP) work schedules, including not scheduling any one SSP to work more than 40 hours per week.
• Work schedules may not include more than 60 hours per week of authorized IHCS, Companion, or a combination of IHCS and Companion services provided by relatives, legal guardians, or legally responsible persons when more than one relative, legal guardian, or legally responsible person is providing services.
• Limitations on the number of hours worked may only be exceeded due to unforeseen circumstances affecting SSP availability, such as inclement weather, sudden illness, or the unexpected resignation of an SSP, which requires temporary additional staffing coverage. Limitations on the number of hours an SSP may work may only be exceeded for up to 13 weeks per fiscal year.
• All waiver services provided by an SSP must occur within Pennsylvania or a state contiguous to Pennsylvania.

Please see the announcement and updated FAQ for additional information.