Temporary Restraining Order Issued To Stop 20% Reduction in In-Home Supportive Services


Posted on 02 December 2011

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By Marty Omoto
California Disability Community Action Network

US District Court Judge Claudia Wilken issued a temporary restraining order yesterday 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.
 
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 irreparable 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 pending 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)..

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Marty Omoto is Executive Director of the California Disability Community Action Network, a non-partisan link to thousands of Californians with developmental and other disabilities, people with traumatic brain injuries, the blind, the deaf, their families, community organizations and providers, direct care, homecare and other workers, and other advocates to provide information on state and local public policy issues.

I find it amazing that those who are young, viril, mostly without
medical or psychological handicaps can write legislation
that impacts older, sickly, often severely. handicapped, people, without thinking
about first cutting services for those cap able of fending for themselves,
While most physically fit people can work a second job, or cut back on some expenses with minor inconvienieces, Seniors, and handicapedcan only wish for a little love and compassion
while they spend their days, waiting for the finality of death.
WHY WOULD WE DEPRIVE THEM LITTLE JOYS THAT WE TAKE FOR GRANTED?
Cant we find a way to cut things not people to fix the budget problems.
Would the legislators treat their own families this way?
NO!!!! They have enough money so they will never have to face a loved one
with this problem.

The IhSS program is way out of control and only growing larger by the day. The 20% cut would not affect those that truly need all of their hours as those in highest need are exempt. As someone who works in the field I have to say that this program is full of fraud and there is little that any one can do about it because the regulations are written so poorly there is all kinds of wiggle room for people to get what they do not need. Even when hours are reduced and the regulations support the reduction the Administrative Law Judges will over rule a regulation in a Fair Hearing. One judge has a disabled child which should be a conflict of interest, her rulings show a strong bias. Many of the folks on IHSS could get along without it and it would do them good to be responsible for themselves instead of relying on the State to pay to have their dishes washed, their cereal poured, their backs washed "I can't reach". Yes there are those who really need and benefit from the program and they would benefit from more than what can be given them through this program. For many others it is a way to bring money into the family giving incentive to exaggerate and lie, but the program was never meant to be a cash aide program. Legislators have the job of making budgets work, they work hard to get the jobs they have and yes they will take care of their own, as it should be. I would suggest not ridiculous cuts like the proposed 20% which is harsh, but a complete overhaul of the regulations so that it is truly used only for those who truly would have to go to a care home if they did not have IHSS. By the way, the States Medical Certification requirement is a joke, the doctors write whatever the patient wants on the form. Another helpful suggestion is to make physicians liable for fraud as well.

The program for the disabled is good, but it's too expensive.

Too Expensive you've got it all wrong, please research the facts!
The States are mandated to provide care to low income disabled (including disabled Veterans), elderly & blind in nursing homes, skilled nursing facilities, hospitals & other institutions. The IHSS program is an alternative to warehousing our citizens in costly institutions who, btw, built & served our Country. IHSS costs 5-10 times less than institutional care. So, the taxpayer benefits w/ saving 25 - 500 billion per year (in CA), the disabled & elderly benefit by being allowed to live independently in their own homes & community with dignity & choice. Finally, we all benefit by having these folks as a valuable resource in our communities as mentors, volunteers etc... We can't afford not to invest in IHSS!