Federal District Court Judge Claudia Wilken issued yesterday (October 14) a restraining order that temporarily stops the Department of Social Services from sending out “notices of action” to over 136,000 children and adults with disabilities, the blind and low income seniors who could lose eligibility for all or many of their services under the In-Home Supportive Services program, until she can rule on a motion (request) by attorneys representing those recipients to stop or delay the cuts from being implemented on November 1st [copy of the Judge Wilken’s 1 page restraining order is on the CDCAN website at www.cdcan.us ]
What the Judge’s Order Means
• The judge’s order does not mean she will eventually rule in favor of those filing the lawsuit to stop the IHSS budget cuts – but it does mean she does not want the State (Department of Social Services, the agency that oversees the IHSS program that is implemented locally by the counties) to move forward by sending out notices to people impacted until she has issued a ruling on the case. Still, it is a sign that the judge views the issue as critical in terms of time and its impact on people.
• Her order does not impact other IHSS notices of action that have been sent out, including those dealing with new IHSS worker (provider) requirements regarding fingerprinting, background checks and also unannounced home visits and fingerprinting for persons receiving IHSS.
• Her order also does not stop the cut impacting services and eligibility to IHSS from going forward – it only stops the State from issuing any notices of action to IHSS recipients on that cut until she is able to rule on the case.
• The judge’s temporary restraining order stops the State from issuing those notices of action however until she issues her ruling no matter how long it takes for her to so. Most observers believe the judge will issue a ruling fairly immediately given the urgency, deadlines and critical impact of the issue.
Court Hearing On October 19th In Oakland – Ruling Could Come Then or Later
The hearing on the case is scheduled for October 19, Monday morning at 10:00 AM in Oakland – though the ruling from the judge on the motion by the attorneys representing IHSS recipients and advocacy groups to stop or delay the IHSS budget cuts from taking effect could be issued at the hearing, or later that day or even several days or weeks later.
The judge’s temporary restraining order and the motion requesting an order to stop the IHSS budget cuts comes from a federal lawsuit filed on October 1 (V.L. v. John Wagner, case number C-09-4668) [for copy of the original complaint go to the CDCAN website at www.cdcan.us ]
The one page order simply says:
United States District Court
For the Northern District of California
San Francisco/Oakland Division
V.L., et al [CDCAN Note: initials of one of the IHSS recipients – “et al” refers to the other people and organizations filing the case]
Plaintiffs
v.
Wagner, et al. [CDCAN Note: “Wagner” refers to John Wagner, director of the Department of Social Services, the state agency that oversees the IHSS program and “et al” refers to the other state agencies and departments and individuals who may have oversight or responsibility for the program on behalf of the State]
Defendants
Case No: CV 09-04668 CW
Order Granting Emergency Temporary Restraining Order
“Good cause having been shown, the Court hereby enjoins defendants [the State of California including Department of Social Services director John Wagner and others] from issuing notices of action to In-Home Supportive Services (“IHSS”) recipients regarding the subject matter of this litigation any time prior to this Court’s ruling on Plaintiffs [the people filing the case – in this instance, the attorneys representing IHSS recipients and advocacy groups] application for preliminary injunctive relief [request to the court to stop or delay the cuts from happening November 1st] after the hearing currently scheduled for October 19, 2009.
It is so ordered:
October 14, 2009 – Honorable Claudia Wilken, United State District Judge”
Some advocacy groups talked about a protest rally in support of the lawsuit at or around the time of the hearing outside the courthouse in Oakland on Monday, though no details have been released.
Lawyers Had Hoped Federal Judge Will At Least Delay IHSS Budget Cuts From Going Forward Before Notices Are Sent Out
Lawyers and others involved in filing the original lawsuit on October 1st, had hoped the federal district court would grant a hearing and issue a ruling that would stop the cuts before the “notices of action” were sent out to those impacted. Originally the State indicated that it would begin sending out notices on October 19th to the over 136,000 people impacted who could lose all or some of their services under the IHSS program.
There were some indication that the State was moving that date up to this week sometime to send out notices, and so lawyers for the IHSS recipients and advocacy groups filed a motion (request) to the federal judge asking her to issue a temporary order that would stop the State from issuing any such notices until she could rule on the case.
Similar notices have already gone out earlier this week regarding new requirements for IHSS workers (providers) for mandatory fingerprinting and background checks – and also mandatory fingerprinting for IHSS recipients, and also the possibility of unannounced home visits by certain state agencies. Those new requirements were part of the revised 2009-2010 State Budget passed in late July by the Legislature controlled by Democrats and approved by Republican Governor Arnold Schwarzenegger. The judge’s temporary restraining order issued yesterday (October 14) does not impact those notices.
IHSS Cuts Included Elimination of All Services Under IHSS For Thousands of People
Those cuts – which the lawsuit seeks to stop – 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.
Some persons – including children under “protective supervision” – were exempted from the reductions, though the budget trailer bill gives the director of the Department of Social Services to waive (eliminate) any or all of those exemptions if it threatens federal matching funds. It is not known officially at this point if any of those exemptions have been waived or eliminated.
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. The notice of action, that will also contain the functional index scores and rankings of the person impacted by the cuts, is scheduled to be sent out October 19.
IHSS Cuts Will Impact Over 136,000 People
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 lose some or all of their domestic and related services under the program due to cuts in the 2009-2010 State Budget passed by the Legislature and approved by the Governor in late July in order to close a shortfall of over $23 billion.
The cuts to IHSS have an impact on other health and human service programs where budget reductions were also made. It is not certain how the cuts to IHSS will impact a specific cut to regional center funded community-based services that required persons with developmental disabilities in supported living service programs to obtain services under IHSS, with a corresponding reduction in their supported living services.
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.
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. The IHSS program is administered locally by the counties.
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.
The California Disability Community Action Network, is 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 eventually federal), local public policy issues.
