CDCAN REPORT #200-2011: Federal court hearing on IHSS postponed; State issues new instructions to counties on IHSS cut

DECEMBER 15TH FEDERAL COURT HEARING DATE ON IHSS 20% REDUCTION POSTPONED - TEMPORARY RESTRAINING ORDER BLOCKING CUT FROM IMPLEMENTATION REMAINS IN FORCE UNTIL NEW HEARING DATE

Federal District Court Judge Expected To Announce New Hearing By Wednesday  - Department of Social Services Issues  December 7th Instructions to Counties to Comply With Court Order Stopping the Cut

SACRAMENTO, CA (CDCAN)  [Last updated 12/12/2011 02:00 PM] - The December 15th federal district court hearing on the lawsuit (David Oster, et al v. Will Lightbourne and Toby Douglas) that - at least temporarily - has stopped implementation of a 20% across-the-board reduction in service hours for possibly hundreds of thousands of people with disabilities, mental health needs and seniors in the In-Home Supportive Services (IHSS) program, has been postponed.  The temporary restraining order (TRO) that was issued December 1st by US District Court Judge Claudia Wilken that required the Brown Administration to halt all actions to implement the 20% across-the-board cut will remain in force until the new court hearing date.

A new hearing date will be scheduled when the State files its legal documents in opposition to a more permanent court order that would block implementation of the 20% IHSS service hours cut - called a preliminary injunction.   Judge Wilken is expected to set a new hearing date and announce it possibly by Wednesday this week.

A court hearing for January 5th by the court to determine class certification could also be changed. "Class certification" is an issue where the court considers a request by those filing the lawsuit to apply the case to a group or class of people - in this specific instance, all the recipients of IHSS who would be impacted by the 20% reduction.

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 case number is: CV 09-04668 CW (David Oster, et al v. Will Lightbourne and Toby Douglas.)

Department of Social services Issues Last Week New All County Letter On IHSS Cut

• Meanwhile, the Department of Social Services, the state agency that oversees statewide the IHSS program, issued last week on December 7th, new instructions to the counties rescinding an earlier document that outlined implementation steps for a 20% across-the-board IHSS cut - and attached a copy of the judge's court order.
• See below for complete text of that document - called an "All County Letter"  which is also attached to this CDCAN Report titled "2011-12-07 - California Department of Social Services - All County Letter - IHSS 20 percent reduction 11-84.pdf"  The three page "All County Letter' was saved by the department as a pdf document, which means that persons who are blind or sight impaired should be able to view it using a screen reading device. However also attached to that document is a 5 page copy of the federal district judge's Temporary Restraining Order issued December 1st that was saved as a pdf image - similar to a picture - rather than a document, which screen reading devices cannot read.]

IHSS Case Impacts Larger State Budget Crisis

• The December 1st court order came 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 and 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.
• Most budget observers believe that the forecast issued this week by the Department of Finance will show that revenues will not meet the targeted goal - and will result in one or both of the State Budget "trigger cuts"  that will be pulled implementing up to $2.5 billion in additional new cuts in State general fund spending - including the cut to IHSS now temporarily blocked), developmental services, higher education and K-12 education.

What the Judge's December 1st Order Means

• As previously reported last week on December 1st by CDCAN, 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 (which it did by issuing on December 7th the new All County Letter).
• 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.
• The judge's order does not impact the existing 3.6% reduction in IHSS service hours, which  is currently set to continue until June 30, 2012. 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.

COMPLETE TEXT OF "ALL COUNTY LETTER" COMPLYING WITH COURT ORDER STOPPING IHSS 20% REDUCTION

December 7, 2011

ALL-COUNTY LETTER NO.: 11-84
TO: ALL COUNTY WELFARE DIRECTORS
IHSS PROGRAM MANAGERS
SUBJECT: DAVID OSTER, et al., v. WILL LIGHTBOURNE, et al., TEMPORARY RESTRAINING ORDER HALTING IMPLEMENTATION OF THE 20-PERCENT REDUCTION IN IHSS RECIPIENTS’ AUTHORIZED HOURS

REFERENCE: ACL NO. 11-81, DATED NOVEMBER 29, 2011

This All-County Letter (ACL) provides information regarding a temporary restraining order (TRO) issued in DAVID OSTER, et al. v. WILL LIGHTBOURNE, et al., a lawsuit filed in the United States District Court for the Northern District Of California, San Francisco/Oakland Division, challenging the 20-percent reduction in In-Home Supportive Services (IHSS) recipients’ authorized service hours scheduled to take effect on January 1, 2012, pursuant to Welfare and Institutions Code (W&IC) section 12301.07. On December 1, 2011, the court issued a TRO directing the California Department of Social Services (CDSS) to immediately halt implementation of the 20-percent reduction. A copy of the TRO is attached.
For the reasons described below, ACL 11-81 is hereby rescinded. The information contained in this ACL supersedes and replaces ACL 11-81.

BACKGROUND

Senate Bill (SB) 73 (Chapter 34, Statutes of 2011) added section 12301.07 to the W&IC, which requires CDSS to implement a 20-percent reduction in each IHSS recipient’s authorized service hours effective January 1, 2012, in the event that the state budget revenue forecast in December 2011 is less than approximately $87.5 billion (as specified in Section 3.94 of the Budget Act of 2011).    [CDCAN Note: SB 73 is the 2011-2012 State Budget trailer bill that authorizes.the 20% reduction ]

In anticipation that the budget reduction trigger provision would become operative, CDSS, on November 29, 2011, released ACL No. 11-81 which provided counties with instructions for implementing the 20-percent reduction in authorized service hours.

On December 1, 2011, plaintiffs sought a TRO in federal district court claiming that CDSS’ efforts to implement SB 73, and the legislation itself, were potentially in violation of federal law. The court granted a TRO prohibiting CDSS from taking any actions to implement the reduction in IHSS recipients’ service hours mandated by SB 73.
Specifically, the TRO directs CDSS to take the following steps:

• Take all actions necessary to ensure that no IHSS recipient’ hours are reduced because of SB 73;
• Refrain from making any changes to the Case Management, Information, and Payrolling System (CMIPS) to implement SB 73 and reverse any changes to CMIPS that have already been made;
• Rescind 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 temporarily enjoined; and
• 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, and rescind any notices, etc. already issued.

STATE RESPONSIBILITIES

The ACL No. 11-81 stated that in November 2011, programming changes would be made to CMIPS to calculate the 20-percent reduction in each IHSS recipient’s total monthly authorized service hours. The CMIPS implementation of the 20-percent reduction did not occur.

The ACL 11-81 also stated that, by December 15, 2011, CDSS would mail out Notices of Action to inform recipients that, as a result of a new state law, their authorized service hours will be reduced by 20-percent, effective January 1, 2012. Aforementioned notices have not, and will not be issued pending further authorization from the court.

COUNTY RESPONSIBILITIES

Counties are instructed to immediately cease any and all actions being taken pursuant to ACL 11-81, or to otherwise implement SB 73.
CDSS is aware that some recipients already have completed and submitted Applications for IHSS Supplemental Care (SOC 877). Counties are instructed to retain any SOC 877 forms received pending the final resolution of this litigation.

Should you have questions regarding any information in this ACL, please contact the Adult Programs Policy and Operations Bureau at (916) 651-5350.

Sincerely,
Original Document Signed By:
EILEEN CARROLL
Deputy Director
Adult Programs Division
Attachment
c: CWDA [copy to California Welfare Directors Association]

FEDERAL JUDGE'S ORDER

The following is the actual order issued by US District Court Judge Claudia Wilken - issued December 1st, and attached to the December 7th "All County Letter":

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: 

2011-12-07 - California Department of Social Services - All County Letter - IHSS 20 percent reduction 11-84.pdf (955.44 KB)