Judge Stops Cuts to In-Home Services

     SAN FRANCISCO (CN) – A federal judge certified a class action and granted a preliminary injunction to stop California from reducing in-home support services for elderly and disabled people.



     Lead plaintiff David Oster sued California’s Department of Social Services and Department of Health Care Services, challenging Assembly Bill X4 4 and Senate Bill 73, which mandate reductions to the state’s In Home Support Services (IHSS) program. The agencies’ directors, Will Lightbourne and Toby Douglas, were also named as defendants.
     The class claimed that ABX 4 4 violated the Medicaid Act, which requires that states provide “sufficient benefits,” by “terminating or reducing IHSS domestic and related services to individuals for whom such services have been deemed necessary pursuant to an individual service plan approved by the state,” according to U.S. District Judge Claudia Wilken’s order granting class certification.
     The class also claimed that both ABX 4 4 and SB 73 “[fail] to ensure that Medi-Cal recipients under the age of 21 receive medically necessary personal care services required by the Early Periodic Screening, Diagnostic, and Treatment (EPSDT) provisions of the Medicare Act,” the class certification order stated.
     ABX 4 4, passed in July 2009, tightened eligibility criteria for participants in the IHSS program. Implementation of the bill was stayed in October 2009 after a lawsuit from program participants and the unions that represent IHSS providers.
     SB 73, passed in 2011, contained “trigger” language to cut IHSS service hours by 20 percent if state revenue targets were not met. In November 2011, after it became apparent that revenue targets would not be met, the Department of Social Services sent letters to all 58 California counties, informing them that impending trigger cuts would take effect on Jan. 1, 2012.
     According to the Wilken’s order granting a preliminary injunction, certain groups of IHSS recipients would be exempted from mandatory reductions under SB 73. These include people with an AIDS or developmental disabilities waiver, recipients of in-home operations, multipurpose senior service programs, and nursing facility and acute hospital services.
     Also exempted from the cuts are people with severe inside mobility problems, those receiving bladder, bowel or menstrual care, patients receiving transfer or paramedical services for bedsore care, those requiring help with eating, recipients authorized for the statutory maximum of 283 hours per month, and those assessed for protective supervision.
     Those at risk of the 20 percent cut were sent letters and could contest the action, according to Wilken’s order. County social service workers then assessed them for risks associated with the reduced services, to see if some or all of the IHSS hours should be restored.
     In granting the preliminary injunction, Wilken rejected state lawyers’ arguments that the claims are not ripe for adjudication.
     “Plaintiffs’ challenge to cuts mandated by SB 73 is not abstract,” Wilken wrote. “The fact that some supplemental care applications may be granted to restore hours for individual IHSS recipients does not defeat the ripeness of the dispute plaintiffs have presented.”
     Wilken also rejected the state’s argument that plaintiffs representing domestic workers’ unions did not have standing, saying that they will suffer economic harm as a result of the cuts.
     “Contrary to defendants’ arguments, union plaintiffs’ claims in this litigation are also germane to their organizational interests,” Wilken wrote. “Union plaintiffs represent IHSS providers who are seeking to prevent the reduction of IHSS benefits, which will, in turn, lessen the amount of work available to their members.”
     “Union plaintiffs and IHSS recipients have a mutual interest in the success of this litigation. From the beginning of this lawsuit, the joint goal of all plaintiffs has been to ensure that IHSS recipients receive the services that they need to remain safely in their homes,” Wilken wrote.
     The state asked Wilken to defer ruling on the plaintiffs’ claims under the Medicaid Act until the U.S. Supreme Court’s resolution of a 9th Circuit appeal to address whether Medicare recipients and providers may maintain a cause of action under the Supremacy Clause to enforce provisions of the statute.
     But the Supreme Court remanded the appeal to the 9th Circuit because of a change in the procedural posture of the case, and did not resolve the question.
     “The court declines to defer a decision on plaintiffs’ request for a preliminary injunction, pending the Ninth Circuit’s resolution of the appeal on remand,” Wilken wrote.
     “The plaintiffs have demonstrated that they are likely to succeed on their claim that SB 73 violates the reasonable standards mandate of the Medicaid Act,” Wilken wrote. “The reduction in IHSS hours stems from California’s budget crisis as opposed to evidence that the need for IHSS hours has been incorrectly evaluated.”
     Wilken added: “It is true that California is experiencing a budget crisis. Although budgetary needs may be considered in determining that service cuts are required, it may not be the sole reason for the reduction,” (citing Douglas v Independent Living Center of Southern California Inc.)
     “Defendants assert that the implementation of the cuts is reasonable in that specific groups of recipients are exempt because ‘they are categorically at serious risk of out-of-home placement as a result of the reduction,'” Wilken wrote.
     “However, certain IHSS recipients will be cut back to 20 percent fewer hours for reasons unrelated to need. These IHSS recipients are not in an exempt or pre-approved group and will receive a notice of action, even though they are presumptively at serious risk of out-of-home placement. Only if these seriously at-risk recipients submit a supplemental care application will they be considered for a restoration of needed service hours. In this respect, eligibility for services is determined, not by a reasonable need-based standard, but by the ability of seriously at-risk recipients to request in a timely manner a restoration of their hours.”
     Wilken found: “Defendants’ plan would deliberately cut services for IHSS recipients who are already known to be presumptively eligible for a restoration of their lost hours, should they protest the 20 percent reduction by applying for supplemental care. Defendants seemingly expect the state will save funds by cutting service hours of those who are unable to protest the hours reduction.”
     Wilken also found that the comparability requirement of the Medicaid Act was violated because some recipients are treated differently than others with the same level of need.
     “As the court explained in its October 23, 2009 order [granting the preliminary injunction of ABX 4 4], the use of functional ranks to determine eligibility for services likely violates the comparability requirement because it does not reasonably measure the individual need of a disabled or elderly person for a particular service,” Wilken wrote.
     “The functional rank of two, which recognizes a need for verbal assistance, compared to the ranks of three, four and five, reflects the nature of the assistance needed, not the severity of the need. For example, a person with a cognitive disorder may only require verbal reminders or encouragement to eat or to take her medications, but the absence of such assistance could have a dramatic, negative impact on the recipient’s health and ability to live safely at home.
     “Furthermore, it is likely that some of the recipients who are seriously at-risk for out-of-home placement and receive notice of the reduction will not be able timely to complete a supplemental care application. Thus, the reductions will go into effect for them. Yet, recipients with comparable or lesser needs who are able to and do request supplemental care may preserve their hours of service.
     “A violation of the comparability requirement is likely to result from the automatic imposition of the 20 percent reduction on those IHSS recipients who do not apply for supplemental care before the deadline.”
     Wilken rejected the state’s argument that Congress waived comparability requirements for state-provided services to certain targeted populations.
     “This does not permit the state to violate the comparability mandate by cutting basic services for some recipients with the same diagnoses and needs,” the judge wrote.
     SB 73 also violates the sufficiency requirement of Medicaid Act, which mandates that each service provided must be sufficient in amount, duration and scope to reasonably achieve its purpose, Wilken found.
     “The IHSS hours authorized for recipients are those that the state has determined to be necessary to permit the recipients to remain safely in their homes,” Wilken wrote. “As a result, the 20 percent reduction in those services will likely leave affected individuals without a level of service sufficient to achieve the purpose of the program.”
     Both laws violate the ADA and Rehabilitation Act, Wilken said. Citing the Supreme Court, she wrote: “Unnecessary isolation is a form of discrimination against people with disabilities.”
     She found that the plaintiffs have also demonstrated injury because they are at imminent risk of institutionalization.
     “The record demonstrates the likelihood that IHSS recipients who are presumptively eligible for a restoration of hours will not have their hours restored because they will be unable timely to submit a request for supplemental care. The evidence also shows that plaintiffs are likely to succeed in demonstrating that the loss of IHSS hours will compromise the health and well-being of IHSS recipients such that they will be at serious risk of institutionalization,” Wilken wrote.
     The agencies also failed their due process requirements with the letter sent to IHSS recipients informing them of the impending cuts, according to Wilken.
     “The letter does not use simple language. It uses small print, and a font and formatting that undermine the letter’s readability,” she wrote.
     The notification plan also failed to address IHSS recipients with visual or cognitive disabilities, as well as those who are illiterate or functionally illiterate, according to Wilken.
     “Furthermore, the letter does not specifically address how to access translations of the notices and forms or even state that they are available,” Wilken wrote. “The IHSS recipient population includes people who cannot read English, Spanish, Armenian, or Chinese. Therefore, the letter is not reasonably calculated to provide notice to the linguistically diverse population of IHSS recipients.”
     The letter failed to fully inform recipients of what would happen to their IHSS hours, of their options, or of the process by which their appeal would be decided, the judge said.
     The plaintiffs also demonstrated likelihood of irreparable harm from the reduced services, and because the state’s interests are strictly fiscal and the plaintiffs’ interests affect their health, well-being and ability to remain safely at home, the equities clearly weigh in favor of the plaintiffs, Wilken found.
     “In fact, the deprivation of essential services to the disabled is part of the assessment of the public interest at stake,” Wilken wrote, citing Lopez v. Heckler. “Further, plaintiffs have demonstrated that IHSS is likely to be cost-effective as compared to the expenses incurred when disabled and elderly individuals are institutionalized. This evidence further supports that the balance of equities and public interest weighs in favor of the plaintiffs,” Wilken concluded.
     In granting the plaintiffs’ preliminary injunction, Wilken recognized California’s need to make cuts.
     “The court recognizes California’s continuing budget crisis, and will not foreclose all reductions of IHSS hours,” she wrote. “The state may cut IHSS hours if unnecessary hours are being compensated, but may not impose cuts mechanistically and then determine the actual needs thereafter. And, the state must give adequate notice to IHSS recipients of the reasons for the reduction of their authorized service hours, and their remedies.”
     Wilken’s preliminary injunction requires that any cuts be made after conducting a needs reassessment to determine the number of IHSS hours necessary to enable the recipient to remain safely at home. The reassessment cannot be based on functionality ranks alone. The state will bear the counties’ costs of the reassessment efforts.
     All future notices of cuts sent to recipients must be written at a fifth-grade level, Wilken ordered, and must not be misleading or confusing. The state must provide notices in English, Spanish, Chinese, Hmong, Armenian, Russian and Vietnamese. The notice must have a telephone number by which those who cannot read, have translational needs beyond what is provided, or have visual or cognitive impairments can receive a reading or translation of the content of the notice.
     Finally, the state must mail notices rescinding its previous notice within four days of the ruling and must post the rescission on the agencies’ website, Wilken ordered.

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