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The Oakland Tribune

October 19, 2009

Federal judge halts IHSS cuts

By: Josh Richman

Lead counsel Melinda Bird of Disability Rights California explains details of October 19 court victory to disability advocates, in Oakland, just outside the U.S. District Courthouse for the Northern District. The hearing was packed with consumers, advocates and plaintiffs, with at least 150 people waiting outside in the rain to hear the outcome. Photo: Michelle Garcia.
Lead counsel Melinda Bird of Disability Rights California explains details of October 19 court victory to disability advocates, in Oakland, just outside the U.S. District Courthouse for the Northern District. The hearing was packed with consumers, advocates and plaintiffs, with at least 150 people waiting outside in the rain to hear the outcome. Photo: Michelle Garcia.

OAKLAND — A federal judge has halted a slashing of the In-Home Supportive Service program which would have affected 130,000 disabled and elderly Californians starting Nov. 1.

U.S. District Judge Claudia Wilken issued the preliminary injunction at the end of a two-hour hearing Monday. She ruled that a written notice she had stopped the state from sending out last week would have been constitutionally inadequate, too hard to understand, and giving too little time for appeals. She also ruled the plaintiffs — advocates for disabled and elderly Californians, along with several labor unions — are likely to be able to prove at trial that the state was using inadequate standards to determine whose services would be cut.

"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," state Department of Social Services spokeswoman Lizelda Lopez said in a statement issued later Monday. "As soon as we receive the 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."

IHSS workers help people with tasks such as meal preparation, food shopping, cleaning and assistance to medical appointments so they can stay in their own homes rather than require costly institutionalization. The plaintiffs say the state's cuts would have meant 40,000 Californians losing services entirely, and 90,000 more seeing their services significantly reduced.

The cuts, approved by the Legislature and Gov. Arnold Schwarzenegger this summer, were to be based on IHSS patients' "functional index" score, an aggregate of rankings in 11 areas in which a patient might need help. Wilken said this case's plaintiffs seem likely to be able to prove the functional index is too vague an instrument, never meant to be used for determining who would and wouldn't keep services in a situation such as this.

State deputy attorney general Gregory Brown asked Wilken to stay the injunction pending the state's appeal to the 9th U.S. Circuit Court of Appeals; she refused.

State deputy attorney general Susan Carson said it took months to develop and install computer coding for the cuts which can't be undone by Nov. 1. The only way to halt the cuts, she said, is for each county's workers to access the state's database and change each IHSS recipient's record individually — a lengthy, costly process.

Disability Rights California senior counsel Melinda Bird, representing the elderly and disabled plaintiffs, argued the state can do more. Wilken ordered Bird to file more court papers by noon Tuesday to explain this, and she ordered Carson to respond by noon Wednesday before she issues a written order detailing how the cuts must be halted.

Wilken also ordered the parties to confer immediately on a letter to be sent to all IHSS recipients explaining that no cuts will be made Nov. 1, although it's possible some cuts may happen in the future.

Stacey Leyton, an attorney for the labor-union plaintiffs, argued Monday that state law and regulations say IHSS is only for people who need help in order to safely stay in their homes, despite the state's assertion that some get services just to improve their quality of life. If the state believes there are many recipients who can safely get by at home with less help, it can have county social workers do reassessments one by one, she said.

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

This lawsuit was filed Oct. 1 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).