(b) Under the backup provider system, a recipient shall be eligible to receive temporary in-home supportive services or waiver personal care services from a backup provider as set forth in this section if both of the following conditions are met:

1. (1) The recipient has an urgent need for backup supportive services due to a need for personal care services that cannot be met by an existing provider, or because they are transitioning to home-based care and do not yet have an identified provider.
2. (2) The recipient’s health and safety will be at risk if they do not receive their regularly scheduled in-home supportive services or waiver personal care services such that it may result in the need for emergency services or out-of-home placement if backup supportive services are not provided.

(c)

1. (1) The maximum total of hours received under the backup provider system shall not exceed 80 hours per state fiscal year for each eligible recipient. Exceptions to this 80-hour limit may be granted on an as-needed basis for severely impaired recipients, but shall not exceed 160 hours each state fiscal year. Exceptions shall only be granted if funding for the exception is appropriated in the annual Budget Act.
2. (2) All service hours received under the backup provider system shall count toward the recipient’s total monthly authorized in-home supportive services or waiver personal care services hours, and shall not impact a recipient’s authorized monthly hours, or the maximum number of hours allowed under Section 12303.4 and subdivision (g) of Section 14132.95.
3. (3) If a recipient has two or more regular providers, on each occasion a recipient has a need for backup supportive services as specified in this section, an exception from an applicable provider workweek limitation set forth in this article may be authorized for one of the regular providers, as authorized pursuant to subparagraph (C) of paragraph (1) of subdivision (b) of Section 12301.1, in lieu of finding a backup provider.

(e) To be eligible to provide authorized backup in-home supportive services or waiver personal care services and receive payment as a backup provider pursuant to this section, a backup provider shall meet all of the following requirements:

1. (1) The person shall not have been convicted of an offense specified in Section 12305.81 or 12305.87 within the past 10 years.
2. (2) The person shall have met all requirements of provider enrollment, as specified in Section 12301.24 and subdivision (a) of Section 12305.81.
3. (3) The person shall be enrolled as a provider through the county or public authority and meet all applicable local requirements to provide emergency backup care.

(h) In operating the backup provider system, counties and public authorities shall only be responsible for the following:

1. (1) Recruiting, enrolling, and making reasonable efforts to identify and recruit available providers, to the extent possible.
2. (2) Responding to recipient requests for backup care.
3. (3) Referring recipients to one or more backup providers, if available and if consistent with the recipient’s preferences and needs. This section does not require a county or public authority to ensure the provision of backup services in the event the county or the public authority is unable to locate an available provider for referral.
4. (4) Entering information as required under this section in the Case Management Information and Payrolling System for purposes of tracking and payments to providers.

(j)

1. (1) Notwithstanding the rulemaking provisions of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code), the department may implement and administer this section through all-county letters or similar instructions until regulations are adopted. The all-county letters or similar written instructions shall have the same force and effect as regulations until the adoption of regulations.
2. (2) The state shall seek any federal approvals it deems necessary to implement this section. This section shall be implemented only to the extent that any necessary federal approvals are obtained and federal financial participation under the Medi-Cal program is available and is not otherwise jeopardized.