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CDCAN Report

November 20, 2009

Federal Judge holds State in contempt for not complying with court order stopping IHSS cuts

Judge Wilken Orders Schwarzenegger Administration to Take Specific Steps to Comply by Friday Even If It Is A Furlough Day

Claudia WilkenSACRAMENTO, CALIF (CDCAN) [Updated 11/20/09  06:20 AM  (Pacific Time)  -  US District Court Judge Claudia Wilken [pictured left in a 2005 photo] in a court hearing Thursday (November 19th) in Oakland,  issued a contempt of court order against the State because the Schwarzenegger Administration has not fully complied with her ruling in October that blocked reductions in the In-Home Supportive Services (IHSS) program using functional index scores and rankings in the lawsuit V.L. v. Wagner.  (for a copy of the original complaint, case number C-09-4668 go to the CDCAN website at www.cdcan.us  [CDCAN note: “VL” is the initials of one of the individuals filing the lawsuit, and “Wagner” is the name of the director of the Department of Social Services – the state agency that oversees the IHSS  program statewide)

The judge’s original ruling in October that stopped those cuts was a sweeping victory for persons with disabilities, mental health needs, the blind, low income seniors and their families, IHSS workers and advocacy groups.

Judge Does Not Levy Fines Against State for Contempt of Court – But Orders State Officials To Take Immediate Steps to Comply on Friday

Judge Wilken, while not levying any fines against the State for not fully complying with her court order – which she has the power to do – issued a series of specific instructions that Schwarzenegger Administration must comply with by the end of the day Friday, November 20th.  Wilken said she did not levy any fines because she preferred that taxpayer money be used instead for services.

Judge Wilken’s ordered the Schwarzenegger Administration to do the following in order to fully comply with her orders and not be held in further contempt that could lead to more serious actions by the court:

  • Ordered the state to turn over the names and addresses of all IHSS workers (providers) who received incorrect timesheets to the attorneys representing the plaintiffs (the individuals and organizations who filed the lawsuit).  Judge Wilken ordered this because she did not believe that state officials would move as quickly as required.
  • At the state’s expense, the attorneys for the plaintiffs will have a letter translated and sent out this weekend to the IHSS workers (providers who received inaccurate timesheets due to the failure by the State to take steps to fully stop and reverse the IHSS cuts using functional index scores and rankings that Wilken’s October order blocked.
  • Counties to be contacted -  Judge Wilken ordered state officials to call every county on Friday (November 20) to determine if the counties have completed the necessary changes to the state’s computer system for IHSS (known as “CMIPS”).   Despite the fact that November 20th is a scheduled furlough day for state employees. Judge Wilken made it clear that state officials must comply even if it is a furlough day.
  • Toll Free Number – Judge Wilken also ordered state officials to establish a toll-free number that persons with disabilities, mental health needs, the blind and seniors who receive services under IHSS and IHSS workers (providers) can call if they need information about their status of their case if it is related to the IHSS cuts that used the functional index scores or rankings, that Judge Wilken’s order in October stopped. 

Court Hearing Held At Request of Attorneys for Plaintiffs

The court hearing was held at the request of the attorneys for the plaintiffs (those individuals and groups who filed the lawsuit) . 

A “contempt of court” order is one of a judge’s strongest power,  that is issued when a person, organization – or in the case of the IHSS lawsuit – a state agency – have disobeyed, been disrespectful or not complied with a court ruling or order.  A judge can impose sanctions – including fines – for those held in contempt. 

Judge’s Contempt of Court Ruling Does Not Impact New IHSS Worker Requirements

The Judge’s contempt of court ruling on Thursday does not impact other cuts to the IHSS program that have not been stopped by a court order – including new requirements for IHSS workers that went into effect November 1st . Those changes went forward despite a storm of controversy and half the state’s counties reporting to the Department of Social Services that they could not comply.  Since then state officials have said many of the problems regarding compliance have eased – though advocates dispute that.  While lawsuits that would seek to stop some or all of those changes are being worked on or contemplated, no legal action has been officially filed with the courts.

Contempt Order Follows Judge’s October 19th Ruling that Blocked Major IHSS Cuts Using Functional Index Scores and Rankings

Judge Wilken’s contempt of court order against state officials on Thursday follows her order 30 days earlier (on October 19th) that stopped the Schwarzenegger Administration from moving forward in implementing cuts in eligibility and services to the IHSS program using the “functional index scores” and “functional index rankings” that was scheduled to go into effect November 1st.   Judge Wilken issued that order – called a “preliminary injunction” from the bench at the end of a two hour hearing.  The Schwarzenegger Administration is appealing that ruling to the US 9th Circuit Court of Appeals.

Both the “functional index scores” and “functional index rankings” are little known assessment tools used by county social workers that records their observations of how well a person can perform (or not perform) a certain in-home task that might require help from an IHSS worker (provider).  It is not a health or medical diagnosis or performed by a doctor.  

The Legislature passed and the Governor approved in late July those cuts and other major reductions to a wide range of other programs as part of the revised 2009-2010 State Budget agreement to close a deficit of over $23 billion.  That followed passage in February – four months early – of the 2009-2010 State Budget and revisions to the 2008-2009 State Budget that also made cuts to many programs and services including IHSS.

On Wednesday (November 18), the Legislative Analyst reported that the state faces another budget shortfall that is projected at $21 billion by the end of the 2010-2011 state budget year (the ends June 30, 2011) barring any additional major spending cuts, new or increased revenues that would close that gap before then. 

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 in October that nearly 40,000 people would have lost 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.  

In addition to the Department of Social Services, 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. 

Original Lawsuit Was Filed by Several Advocacy Groups and Unions

The original 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)

REMEMBERING THE LIVES OF EDWARD M. KENNEDY, EUNICE KENNEDY SHRIVER, JOAN B. LEE, DONALD ROBERTS, ADAM MARSHAL & BILL YOUNG.

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MANY, MANY THANKS TO VALLEY MOUNTAIN REGIONAL CENTER, Toward Maximum Independence, Inc (TMI), Friends of Children with Special Needs, UCP of Los Angeles, Ventura and Santa Barbara Counties, Southside Arts Center, San Francisco Bay Area Autism Society of America, Hope Services in San Jose, FEAT of Sacramento (Families for Early Autism Treatment), RESCoalition, Sacramento Gray Panthers, Easter Seals of Southern California, Tri-Counties Regional Center, Westside Regional Center, Regional Center of the East Bay, UCP of Orange County, Alta California Regional Center,  Life Steps,  Parents Helping Parents, Work Training, Foothill Autism Alliance, Arc Contra Costa, Pause4Kids, Manteca CAPS, Training Toward Self Reliance, UCP, California NAELA, Californians for Disability Rights, Inc (CDR) including CDR chapters, CHANCE Inc, , Strategies To Empower People (STEP), Harbor Regional Center,  Asian American parents groups, Resources for Independent Living and many other Independent Living Centers, several regional centers, People First chapters, IHSS workers, other self advocacy and family support groups, developmental center families, adoption assistance program families and children, and others across California