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Oakland Tribune

October 1, 2009

Advocates for disabled sue to stop IHSS cuts

By Josh Richman

Advocates for disabled and elderly Californians, along with several labor unions, filed a federal class-action lawsuit Thursday in San Francisco to try to halt impending cuts to the state's In-Home Supportive Services program.

IHSS workers help people with physical and mental disabilities perform tasks such as meal preparation, food shopping, cleaning and helps them get to medical appointments so they can remain in their own homes rather than require costly institutionalization.

This lawsuit's plaintiffs say the IHSS service reductions scheduled to take effect Nov. 1 will mean 40,000 Californians losing services entirely, and 90,000 more seeing their services significantly reduced; some will end up in costlier nursing care, they say, while others will simply be neglected and left at a higher risk of harming themselves.

Disability Rights California senior counsel Melinda Bird said Thursday that the cutbacks — part of the state budget cuts approved by the Legislature and Gov. Arnold Schwarzenegger this summer — will be based on IHSS patients' "functional index rankings," which she described as a nonscientific number assigned to patients for each task for which they might need IHSS help.

People with an overall functional index score below 2 will no longer qualify for IHSS services, and people with a functional index ranking below 4 for any domestic or related service will no longer receive that particular service.

But Bird said the state has never let IHSS patients see their own functional index rankings, and is only finally about to do so in notices going out Oct. 19, less than two weeks before services are cut — a violation of the 14th Amendment right to due process of law, she said.

The plaintiffs hope to persuade a federal judge to halt the cuts before those notices are issued.

She acknowledged to reporters Thursday that California isn't obligated to maintain programs such as IHSS exactly as they are, but service reductions or eliminations must be based on individual, detailed assessments, not "this willy-nilly, across-the-board fashion" on such short notice.

California Finance Department spokesman H.D. Palmer said although the Schwarzenegger Administration understands and regrets that some of California's most vulnerable residents are at risk, the IHSS service reductions are estimated to save $82 million this fiscal year and $137 million per year in the future.

"These reductions while certainly difficult were a necessary part of a package that closed a $24 billion budget gap in July," Palmer said. "We will review the suit and we will defend the decision."

Bird said the lawsuit also challenges the cuts under the Americans with Disabilities Act, which the U.S. Supreme Court has said requires states to provide services to the disabled in the most integrated setting possible. IHSS is "a cornerstone" of California's ADA compliance, she said.

The lawsuit was filed by Disability Rights California, Disability Rights Legal Center, National Senior Citizens Law Center, the National Health Law Program, and four unions representing IHSS workers: Service Employees International Union-United Long Term Care Workers; SEIU-United Healthcare Workers West; SEIU Local 521; and UDW Homecare Providers Union-AFSCME Local 3930.

This case challenges cuts in hours provided to IHSS patients, while an earlier case pursued by the SEIU challenged a proposed July 1 cutback in IHSS workers' wages.

U.S. District Judge Claudia Wilken of Oakland in June enjoined the state from enacting those cuts; the state appealed that injunction, but the 9th U.S. Circuit Court of Appeals has not yet ruled on that case.