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FEDERAL JUDGE STOPS MAJOR IHSS CUTS - SAYS STATE VIOLATED FEDERAL LAW - COURT RULING IS A SWEEPING VICTORY FOR DISABILITY AND SENIOR ADVOCATES

JUDGE ORDERS STATE TO SEND OUT NOTICES TO ALL IHSS RECIPIENTS AND WORKERS IMPACTED INFORMING THEM OF HER RULING - CDCAN TOWNHALL TELEMEETING STILL ON FOR OCT 21 - CRITICAL MEDI-CAL OPTIONAL BENEFITS LAWSUIT HEARING ON OCT 22 IN SF

Photo of Protest Outside Oakland Courthouse by Marty Omoto with Speaker Loretta Stevens: Protest Outside Oakland Courthouse

OAKLAND, CALIF (CDCAN) [Updated 10/19/09  09:55 PM  (Pacific Time)  - In a sweeping major victory for persons with disabilities, mental health needs, the blind, low income seniors and their families, In-Home Supportive Services (IHSS) workers and advocacy groups, Federal  District Court Judge Claudia Wilken in Oakland issued an order early Monday afternoon (October 19th) that stopped the State from moving forward on implementing cuts to eligibility and services under the IHSS program that was scheduled to go into effect November 1.  (for a copy of the original complaint, V.L. v. John Wagner, case number C-09-4668 go to the CDCAN website at www.cdcan.us )

The judge denied a request (motion) from the State to "stay" (delay effective date of her injunction) until her ruling can  be appealed ("staying" her injunction would have allowed the cuts to go forward until the case could be heard in the US 9th Circuit Court of Appeals).

Judge Wilken granted the order - called a "preliminary injunction" after a two hour long hearing that began just after 10:00 AM, saying from the bench that substantial harm, damage and injury which would result if the cuts went forward.

The judge's order blocks the State from implementing major cuts to eligibility based on a person's "functional index score" and reductions in domestic and related services based on a person's "functional index rankings" that the Legislature passed and the Governor approved in late July as part of the revised 2009-2010 State Budget agreement to close a deficit of over $23 billion.

Judge Wilken said the State's use of the "functional index rankings" and "functional index scores" were clearly not based on need, that essential services could be withdrawn arbitrarily, and that "people could lose something irreplaceable - the ability to remain safely in their homes."

The Judge is expected to issue a longer written opinion later, after her written order from the bench is released.

Over 136,000 People Would Have Been Impacted By Cuts

The California Department of Social Services, which oversees statewide the IHSS program that is administered locally by the counties, reported earlier this month that nearly 40,000 people would lose eligibility for all services under IHSS, while over 90,000 additional persons would have lost some or all of their domestic and related services under the program

Statewide, the In-Home Supportive Services program, currently serves close to 450,000 children and adults with disabilities, mental health needs, the blind and low income seniors.

The Department of Health Care Services also plays a major role in overseeing the program for the state, because nearly all of the IHSS program receives matching federal Medicaid (Medi-Cal) funding, along with state and county dollars.

Schwarzenegger Administration Says It Will Comply But Could Be Delays

The Schwarzenegger Administration, represented by the Department of Social Services issued the following written statement following the court ruling:

We will comply with the judge's order, but we cannot quickly reverse some of the complex payroll system changes that have already been made, so there may be some delay.

As soon as we receive the [court's] final order, we will analyze it so that we can see what it means for IHSS recipients in the coming weeks, and do our best to communicate with them about how their services may be affected.

Judge Wilken's Ruling Covers Several Points

Judge Wilken ruling covered several points including the following major issues:

• Notice of Action - Judge Wilken said that that cuts cannot go forward on November 1st because the notices of action that the State planned to send to the over 136,000 children and adults impacted did not meet the due process requirements under the US Constitution. The judge said that the notices were confusing, not understandable, and did not include translations into different languages. The Judge ordered the State to revise the "notices of action".
• IHSS Cuts Using "Functional Index Scores" and "Functional Index Rankings" - these cuts violated federal law because it relies on a "arbitrary number" that doesn't reflect people's needs to remain in their own homes, and because of those violations, stopped these reductions from going into effect.
• Notice To IHSS Recipients and Workers of Judge's Ruling - Judge Wilken ordered the State to send new notices out to all IHSS recipients and workers impacted that informed them of her ruling.
• Compliance With Judge's Order - asked plaintiffs (the attorneys representing the IHSS recipients and workers) to appear in her court at 12 noon Tuesday (October 20) to provide her with information and a recommendation whether she should order the state to change their computer system to require them on a statewide basis to reverse the cuts scheduled to go into effect November 1st or - as the state recommends, to have the counties do it on a "case by case" basis.

Lawsuit Was Filed by Several Advocacy Groups and Unions

The lawsuit was filed on behalf of persons receiving IHSS,  by several advocacy organizations and four unions representing IHSS workers (providers):

• Disability Rights California (formerly Protection and Advocacy Inc or PAI)
• Disability Rights Legal Center
• National Senior Citizens Law Center
• National Health Law Program
• SEIU/United Long Term Care Workers
• SEIU-United Healthcare Workers West
• SEIU Local 521
• United Domestic Workers (UDW) Providers Union (AFSCME Local 3930)

The lead attorneys for the lawsuit can be reached as follows:

Melinda Bird, Disability Rights California (representing the IHSS recipients)
Stacey Leyton, Altshuler Berzon LLP,  (representing the IHSS workers)
Paula Pearlman, Disability Rights Legal Center

Outside Court Building - Crowd Erupts With Cheers and Tears

Outside the court building a crowd that at its peak was several hundred persons with disabilities, seniors, workers and other advocates gathered in support of the lawsuit and protesting the budget cuts not only to IHSS but to other critical health and human services.

Dozens of people who remained outside in weather that included both wind and some rain, screamed with joy upon hearing the news of the judge's order, with many in the crowd weeping after the two hour hearing ended.  The crowd greeted the attorneys on the case - led by Melinda Bird of Disability Rights California (formerly Protection and Advocacy Inc.) and Stacey Leyton, Altshuler Berzon LLP, with loud applause and cheers.

A woman with disabilities, who said she was, before the Judge's ruling, in a panic about losing her support staff and her home, was in tears after hearing the news outside the court building, shaking her head in disbelief  saying"...I've been so scared for so long now that I can't believe someone finally has listened to us. I can't believe it.  We won...we won..."  She wept and hugged a family member who came with her.

IHSS Cuts Had Included Elimination of All Services Under IHSS

• The IHSS cuts - which the lawsuit stopped - included elimination of all services under IHSS for any person with a "functional index score" under 2. That score is a weighted average of what is called the "functional index ranking" for each task authorized under IHSS that a person is eligible to receive.
• Those assessments are done by county social workers, though up until recently, virtually no person receiving IHSS or even advocates and policymakers knew what a "functional index score" or "functional index ranking" was.
• In addition the revised 2009-2010 State Budget passed last July also included a further reduction, that would eliminate domestic and related services for a person under IHSS who had a "functional index ranking" (different from the score, which is an average of the rankings) that was under 4 in that particular domestic or related service. That cut has also been stopped by the Judge's ruling today (October 19).
• The original effective date for these cuts in the revised 2009-2010 State Budget was September 1, which was pushed back due to implementation problems at the state and local levels - to November 1st. With the Judge's ruling today, the effective dates of the IHSS cuts are now blocked at least for the foreseeable future

Many other health and human service programs - including developmental services, Medi-Cal, SSI/SSP (Supplemental Security Income/State Supplemental Payment Program), senior programs, mental health services, community college disabled student programs and more were hit with major permanent budget cuts.

IHSS Reductions Part of Revised 2009-2010 State Budget Passed Last July

Last July the Legislature controlled by the Democrats passed and Governor Arnold Schwarzenegger approved, a revised 2009-2010 State Budget that included major additional cuts to In-Home Supportive Services, along with major reductions to other health and human service programs.  Those cuts are contained in ABx4 4 ("x4" stands for 4th special or extraordinary session) a budget related bill - called "budget trailer bill" because it follows or trails the main budget bill (see below for text from the bill that deals specifically with the cuts to IHSS).  A copy of that bill is on the CDCAN website at www.cdcan.us

The Assembly approved in late July, the IHSS cuts in ABx4 4 by a vote of 73 to 3 with 3 members not voting (and 1 vacancy).  Those opposing were Republican Assemblymember Joel Anderson pf La Mesa and Democratic Assemblymembers Sandre Swanson of Oakland and Mariko Yamada of Davis.  Three members abstained or did not vote (all Republicans): Assemblymembers Bill Berryhill of Ceres , Mike Duvall of Brea and Ted Gaines of Roseville.

At the time the Democrats controlled the Assembly with 49 members, 1 independent (Juan Arambula)  and 29 Republicans and 1 vacancy, the 51st Assembly District  (that eventually was filled by a Democrat in September).

The State Senate approved also in late July, those IHSS cuts in ABx4 4 by a vote of 35 to 5.  Those opposing were Democratic State Senators Gil Cedillo of Los Angeles, Lou Correa of Santa Ana, Loni Hancock of Berkeley, Carol Liu of Pasadena, and Leland Yee of San Francisco.  Democrats control the State Senate 25 to 15.

Republican Governor Schwarzenegger approved the main revised budget bill and the budget trailer bills - including ABx4 4, on July 28, 2009.

Judge's Ruling Does Not Cover Other IHSS Budget Cuts or Policy Changes

Judge Wilken's ruling today does not cover the following other budget reductions or policy changes to the IHSS program:

• Share of Cost "Buy-Out" Program - this IHSS program was eliminated effective October 1, 2009 as part of the revised 2009-2010 State Budget agreement passed by the Legislature and approved by the Governor in late July. A separate lawsuit to stop this elimination and to restore it is moving forward, though has not yet been filed.
• IHSS Public Authority Reduction - the Governor, used his line item veto power in late July, to make an additional cut of $37,550,000 (beyond cuts and major policy changes already in the revised 2009-2010 budget bill passed in late July by the Legislature) impacting In-Home Supportive Services including an additional $8,655,000 reduction in funding for IHSS Public Authority Administration. Governor's veto message said that "This leaves $10,000,000 General Fund available for the Public Authorities to provide assistance to recipients in finding IHSS providers, investigate qualifications of potential IHSS providers and offer training to IHSS providers." Two separate - but nearly identical lawsuits - were filed in late August/September including one by Senate President Pro tem Darrell Steinberg (Democrat - Sacramento), though not action has been reported on either.
• IHSS Worker Fingerprinting and Background Checks - notices for this new requirement - part of the revised 2009-2010 State Budget passed by the Legislature and approved by the Governor in late July - went out early last week to IHSS workers and recipients. Any person not yet an IHSS worker before November 1 would have to be fingerprinted and have a background check before they can work and receive any payment. Persons who are currently an IHSS worker would have until July 1, 2010 to meet this requirement. A lawsuit by a bay area non-profit legal organization is being seriously considered to stop this requirement.
• IHSS Recipient Fingerprinting and Unannounced Home Visits - notices for this new requirement went out also early last week and was part of the revised 2009-2010 State Budget passed by the Legislature and approved by the Governor. A lawsuit to block this requirement is being seriously considered and could be filed in the next several weeks.
• IHSS Worker Wages - State Funding Reduction (State Participation) - The 2009-2010 State Budget passed by the Legislature and approved by the Governor in February, included a major reduction in what the State contributes toward IHSS worker wages (the counties and federal government provide the remaining funding) to a maximum of $9.50 per hour plus a maximum of 60 cents for health benefits, scheduled to go into effect July 1, 2009. This reduction was blocked by a federal lawsuit filed by the unions representing IHSS workers (SEIU and United Domestic Workers of America) with Judge Claudia Wilken issuing an order - a preliminary injunction - that stopped the cut from taking effect. The State is appealing the ruling to the US 9th Circuit Court of Appeals.

9th Circuit Court of Appeals Will Hear Medi-Cal Optional Benefits Case

Meanwhile, also this week on Thursday (October 22) at 11:00 AM, the US 9th Circuit Court of Appeals will hear, on an emergency basis, a federal lawsuit filed by the Medicaid Defense Fund on behalf of Medi-Cal recipients and advocacy groups including the Gray Panthers of San Francisco, Independent Living Center of Southern California and others, that seeks to restore the 9 Medi-Cal "optional benefits"  for adults - including adult dental - that were eliminated July 1, 2009 as part of the 2009-2010 State Budget agreement passed in February.  [CDCAN will also be onsite for this hearing and report any developments immediately as information becomes available.]

If the court decides to order those "optional benefits" restored based on the claim in the lawsuit that the State was in violation of several federal laws - including the American Recovery and Reinvestment Act (ARRA) sometimes known as the "economic stimulus act" - the outcome would have sweeping impact on many other programs and services that were hit by major budget cuts this year, including those to regional centers, In-Home Supportive Services (IHSS), adult day health and others that receive Medicaid funding.

The Medi-Cal optional benefits lawsuit - Gray Panthers of SF, et al v. Arnold Schwarzenegger, et al. al., will be heard on October 22, 11:00 AM at:

Federal Court Building - Courtroom 1 (on first floor)
95 Seventh Street (between 7th and Mission Streets)
San Francisco, CA
Note: court hearing date for this case, the time and courtroom could change.

REMINDER - CDCAN TOWNHALL TELEMEETING ON IHSS CUTS

As reported earlier, with widespread fear and growing near panic reported across the State among thousands of people with disabilities, the blind, mental health needs, seniors, their families and workers on the impact of major cuts to In-Home Supportive Services (IHSS) set to take effect November 1, a CDCAN Townhall Telemeeting has been scheduled for October 21, Wednesday from 1:00 to 2:45 PM featuring advocates who will answer questions and provide latest updates and information on the lawsuits, and also other changes to IHSS.

CDCAN TOWNHALL TELEMEETING

"BRINGING POLICYMAKING TO WHERE PEOPLE LIVE"

OCTOBER 21, 2009 - WEDNESDAY  1:00 - 2:45 PM

TOLL FREE LINE:  877-551-8082   (no passcode)

• ADVOCATES WILL ANSWER QUESTIONS ON IHSS BUDGET CUTS
• ALSO PROVIDE LATEST UPDATES, INCLUDING LATEST INFORMATION ON PENDING LAWSUITS (TWO FEDERAL LAWSUITS WILL BE HEARD NEXT WEEK: A FEDERAL LAWSUIT SEEKING TO STOP THE IHSS CUTS FROM GOING THROUGH IS SET FOR AN EMERGENCY HEARING IN FEDERAL DISTRICT COURT ON OCTOBER 19th.
• WILL ALSO PROVIDE ANY UPDATES ON A DIFFERENT LAWSUIT SEEKING TO RESTORE THE 9 ELIMINATED MEDI-CAL OPTIONAL BENEFITS IS SCHEDULED FOR HEARING BEFORE THE US 9th CIRCUIT COURT OF APPEALS ON OCTOBER 22, ALSO IN SAN FRANCISCO.

Note: For those who cannot participate in the CDCAN Townhall telemeeting, you can forward your questions or concerns to Marty Omoto at martyomoto@rcip.com who will ask your questions for you during the townhall.

All CDCAN Townhall Telemeetings are recorded and posted on the CDCAN website at www.cdcan.us