CDCAN REPORT #194-2011: Federal judge issues temporary restraining order to stop 20% IHSS reduction

FEDERAL DISTRICT COURT JUDGE ISSUES TEMPORARY RESTRAINING ORDER TO STOP 20% IHSS REDUCTION

Orders Brown Administration Officials Not to Proceed Further On Reduction Until Court Hearing December 15th To Consider Whether Preliminary Injunction Should Be Ordered by Court - IHSS Reduction Would Have Been Effective January 1, 2012 If State Budget 'Trigger Cut" Is Pulled by December 15th

SACRAMENTO, CA (CDCAN) [Last updated 12/01/2011 04:55 PM] - US District Court Judge Claudia Wilken issued a temporary restraining order today that requires the Brown Administration to halt all actions to implement the 20% across-the-board cut in service hours for hundreds of thousands of people with disabilities, mental health needs, and seniors in the In-Home Supportive Services (IHSS) program.  The judge's order also requires the State to rescind any information, instructions and notices of action to the counties and any IHSS recipients that it has sent out. [CDCAN Note: a copy of the 5 page temporary restraining order is attached to this CDCAN Report titled "2011-12-01 - US DC CAND - Oster, et al v. Lightbourne and Douglas - IHSS Reduction Temporary Restraining Order (Judge Wilken).pdf"  The document was saved as a document pdf file, and persons who are blind or sight impaired should be able to read it using a screen reading device.]

The order comes two weeks after the Legislative Analyst Office - the non-partisan office that reviews budget issues for the Legislature - projected that the State will face a still massive $13 billion budget deficit by June 30, 2012 unless action is taken by the Governor and Legislature to address it.  The judge's order comes just 14 days before the Governor's Department of Finance will issue its own forecast of revenues and spending in the remaining 6 months of the 2011-2012 State Budget year - a forecast that most believe will mean that one or both of the State Budget "trigger cuts" will be pulled implementing up to $2.5 billion in additional new cuts in State general fund spending - including the cut to IHSS.

Court Hearing Set for December 15th In Oakland

• A hearing before the court is set for December 15, 2011 at 2:00 PM in Oakland to determine whether or not a preliminary injunction should be issued that would block the cut from being implemented.
• It appears likely at this point - barring a surprise - that the court will grant the preliminary injunction (such an order is usually granted when the court believes the persons or organizations filing the lawsuit are highly likely to be successful in a trial on the merits of the case and that there is a substantial likelihood of irrreparable harm unless the injunction stopping the action is issued).
• If the US District Court issues a preliminary injunction blocking the 20% IHSS reduction, the State will likely appeal that ruling and ask the US 9th Circuit Court of Appeals to reverse it - though that process could take months.
• Several cases are pendimg before the US 9th Circuit Court of Appeals - and also several cases waiting for a ruling from the US Supreme Court (likely to come out some before the end of June 2012) dealing with Medi-Cal related funding reductions, including those impacting directly In-Home Supportive Services.

Judge's Order Widely Praised By Disability and Senior Advocates Across State

The judge's temporary restraining order was widely praised across the state by disability and senior advocates - providing relief to hundreds of thousands of IHSS recipients, family members and workers - many who were in a growing state of panic and anxiety as the reductions became more likely to be implemented within weeks.

Melinda Bird, lead counsel for Disability Rights California, one of the organizations that filed the lawsuit on behalf of IHSS recipients, said earlier today that the planned reductions violate rights under the federal Americans with Disabilities Act and the Medicaid Act and other federal laws and that "...the decision to make indiscriminate, major cuts in IHSS services will endanger recipients by withdrawing many hours of the very help that county social workers decided were necessary to keep them safely in their homes and to avoid more expensive institutional care."

Bird said that the reduction was "substantial' and if implemented "...will force seniors, people with serious disabilities or severe medical conditions to take needless risks--such as bathing without assistance or missing medical appointments because there is no alternative service--and sharply increase the chances that they will have to move out of their homes and communities into nursing homes and other institutions."

What the Judge's Order Means

• The court order issued today means that - at least until December 15th - the Brown Administration cannot proceed further on the 20% reduction in service hours to those persons receiving IHSS and not eligible for an exemption from that cut.
• The Brown Administration is required by the temporary restraining order to rescind any and all notices to the counties and recipients regarding implementation of the 20% reduction and inform all counties that the recent 'All County Letter" is rescinded.
• Over 370,000 people with disabilities - including children and seniors and those with mental health needs - are impacted by the planned 20% reduction and the restraining order stopping it today.  Hundreds of thousands of IHSS workers are also impacted, who faced significant loss of hours and in some cases, possible loss of health benefits if the reduction is implemented.
• The judge's order does not impact directly (though could influence) new reductions to IHSS and other health and human service programs that the Governor could include in his 2012-2013 State budget on January 10, 2012.  The Governor is expected to propose significant major new reductions in order to close the projected $13 billion on-going budget shortfall.

20% Reduction Part of 2011-2012 State Budget "Trigger Cuts"

• The 20% reduction is part of hundreds of millions of dollars of additional automatic State budget cuts that will be effective on or sometime after January 1, 2012 if it is determine by the Governor's Department of Finance (by December 15th) that the State's revenues will fall below what was projected in the 2011-2012 State Budget enacted last June.
• If one or both of the State budget "trigger cuts" are pulled - a prospect that seems almost certain barring a surprise - then the IHSS reduction (totaling over $100 million in additional cuts in State general fund spending), $100 million in additional state general fund spending for developmental services, and additional significant new cuts to other programs and higher education would be implemented, effective on or after January 1, 2012.
• The 20% reduction - which allowed for exemptions for certain persons - would amount to at a reduction of at least $100 million in State general fund spending for IHSS in the remaining 6 months of the 2011-2012 State budget year that ends June 30, 2012. The 20% reduction - if the State budget trigger cut is pulled - and if the cut was allowed to proceed - would be in addition to the existing 3.6% reduction in most IHSS recipient authorized monthly service hours that took effect February 1, 2011. The existing 3.6% reduction will continue and is not impacted by the December 1st court order.
• The 3.6% reduction is currently set to continue until June 30, 2012. That means, if the State budget "trigger cut" is pulled and the 20% is allowed to proceed, a person with disabilities, mental health needs, the blind or seniors in the IHSS program could face a total reduction in service hours of 23.6%., unless they were exempted from the reduction.

Lawsuit Filed Today By Disability and Senor Advocacy Groups and Unions on Behalf of IHSS Recipients

• The lawsuit was filed on behalf of IHSS recipients by Disability Rights California (DRC), Disability Rights Legal Center, National Senior Citizens Law Center, the National Health Law Program and San Diego attorney Charles Wolfinger.  The law firm of Altshuler Berzon LLP is also counsel in the lawsuit, representing unions including five SEIU locals and United Domestic Workers-AFSCME (American Federation of State, County and Municipal Employees), whose members are IHSS caregivers and attendants.
• The lead person (plaintiff) listed in the lawsuit is David Oster and was filed against Will Lightbourne, the director of the Department of Social Services - the state agency that oversees statewide the IHSS program - and Toby Douglas, the director the Department of Health Care Services - the state agency that oversees California's federal Medicaid program (called "Medi-Cal").  IHSS is almost entirely funded with matching Medi-Cal funding (matched by State and county dollars).
• The case number is: CV 09-04668 CW  (David Oster, et al v. Will Lightbourne and Toby Douglas)

FEDERAL JUDGE'S ORDER

The following is the actual order issued by US District Court Judge Claudia Wilken:

Accordingly, IT IS HEREBY ORDERED that, pending an order by this Court as to whether a preliminary injunction should issue, Defendants, their officers, agents, servants, employees, and attorneys, and all persons acting by, through, under, or in concert with Defendants (referred to collectively hereinafter as “Defendants”) are enjoined from taking any actions to implement the reduction in IHSS recipients’ service hours mandated by SB 73 [CDCAN Note: SB 73 is the 2011-2012 State Budget trailer bill that authorizes.the 20% reduction]

• IT IS FURTHER ORDERED that Defendants take all actions necessary to ensure that no IHSS consumers’ hours are reduced because of SB 73 during the pendency of this injunction.
• IT IS FURTHER ORDERED that Defendants refrain from making any changes to the Case Management, Information and Payrolling System (“CMIPS”) to implement the reductions contemplated by SB 73.
• IT IS FURTHER ORDERED that, to the extent Defendants have already taken any actions to implement those reductions, Defendants immediately undo any such actions. This includes, but is not limited to, immediately undoing any changes to the Case Management, Information and Payrolling System (“CMIPS”) made to implement the reductions contemplated by SB 73.
• IT IS FURTHER ORDERED that Defendants immediately rescind All-County Letter (ACL) No. 11-81 and inform all counties that it has been rescinded and that the reductions in IHSS recipients’ service hours mandated by SB 73 have been enjoined.
• IT IS FURTHER ORDERED that Defendants immediately halt issuance of any notices (including but not limited to Notices of Action), letters, time sheets, e-mails, web postings, or any other written materials to IHSS recipients or providers in any way suggesting that their authorized hours have been or will be reduced as a result of SB 73, or as a result of any actions undertaken to implement SB 73.
• IT IS FURTHER ORDERED that, if Defendants have already issued any notices (including but not limited to Notices of Action), letters, time sheets, e-mails, web postings, or any other written materials to IHSS recipients or providers in any way suggesting that their authorized hours have been or will be reduced as a result of SB 73, or as a result of any actions undertaken to implement SB 73, Defendants immediately issue notices to those IHSS recipients or providers, informing them that their authorized hours will not be reduced as a result of SB 73, or as a result of any actions undertaken to implement SB 73, due to this injunction. Any such notice shall be accessible to recipients and/or providers whose primary language is not English, and/or who have vision impairments.
• IT IS FURTHER ORDERED that, within five business days from the date of this order, Defendants shall serve and file a declaration verifying that they have complied with this order and detailing what steps, if any, they have taken to do so.
• IT IS FURTHER ORDERED that Plaintiffs’ papers filed in support of their application for a temporary restraining order shall be treated as Plaintiffs’ moving papers for a preliminary injunction. Defendants may file and serve their opposition to Plaintiffs’ request for a preliminary injunction on or before December 7, 2011. In the event that Defendants file their opposition by that date, Plaintiffs may file a reply brief in support of their motion for preliminary injunction no later than December 9, 2011, and a hearing on Plaintiffs’ request will be held on December 15, 2011 at 2:00 pm.  Alternatively, Defendants may file and serve their opposition to Plaintiffs’ request for a preliminary injunction at their convenience. Plaintiffs shall file a reply brief in support of their motion no later than two full court days thereafter. A hearing on Plaintiffs’ request for a preliminary injunction will be scheduled for the first or second Thursday after Plaintiffs' reply is filed, at 2:00 pm. The temporary restraining order shall remain in effect until the day the hearing is held.

IT IS SO ORDERED.
Dated: December 1, 2011
[signed]
Honorable Claudia A. Wilken
United States District Court Judge

File Attachments: 

2011-12-01 - US DC CAND - Oster, et al v. Lightbourne and Douglas - IHSS Reduction Temporary Restraining Order(Judge Wilken).pdf