A coalition of groups including UDW has filed suit in federal court in San Francisco seeking to block the cuts in IHSS scheduled to take effect November 2.  The lawsuit was filed on behalf of IHSS recipients and caregivers. Four public interest law firms – Disability Rights California, Disability Rights Legal Center, National Senior Citizens Law Center and the National Health Law Program were joined by the law firm of Altshuler Berzon LLP, which is representing SEIU locals (SEIU – United Healthcare Workers, SEIU – United Long Term Care Workers, and SEIU Local 521), California United of Homecare Workers (CUHW), and  United Domestic Workers-AFSCME.

These proposed cuts are based on a person’s Functional Index score.

The functional index is a number the IHSS social worker assigns a client which denotes the ability of the client to do a task (such as housekeeping). For instance, a functional index rank of “2” means that the client is able to perform a function (task), but needs verbal assistance, such as reminding, guidance, or encouragement. A “5” ranking would mean the client cannot do the task with or without assistance. A final overall functional index ranking or “score” is assigned to the IHSS consumer based on a weighted average of the client’s ability to perform or not perform the task. Not all tasks are ranked (such as yard abatement, heavy cleaning).

The lawsuit has been filed in hopes of preventing the mailing of notices of action on October 19 to consumers who are being thrown out of the program or having their services reduced.  Attorneys are seeking an expedited hearing by the court prior to that date. The lawsuit alleges that the IHSS cutbacks will violate federal constitutional due process protections, the Medicaid Act, and the Americans with Disabilities Act. 

Press conference participants included:

Melinda Bird, Attorney, Disability Rights California

Lee Collins, Director, San Luis Obispo Department of Social Services

Donna Calame, Executive Director, San Francisco Public Authority

Ann Guerra, Director, Nevada/Sierra County Public Authority

The speakers argued that:

1.      FI scores are arbitrary and unscientific and were never intended to be used for across-the-board decisions on benefit cuts. Using these scores to determine eligibility is like using the first letter of a person’s name to determine who gets cut.  Until now, consumers have never been sent information explaining what their FI scores are and how they are determined.

2.      The NOAs scheduled to be sent out by the state on Oct. 19 are grossly inadequate and will not give consumers the information they need to understand why they are being cut and to determine whether or not to appeal.

3.      The 10-day-window in which consumers can appeal the NOAs is not enough time.

The lawsuit is asking that the state be told to “go back to the drawing board” and come up with a comprehensive notice that clearly spells out the situation and allows consumers more time to appeal.

All of the speakers argued that these cuts truly may have life-or-death ramifications because they are based on an average FI score rather than on each individual’s actual needs.  For example, a consumer with Alzheimer’s may be fully capable of cooking and cleaning for herself, yet may constantly forget to do such things as turn off the stove after cooking.  Using the state’s rationale, this person would be cut from the program. However, without assistance, that individual may be a danger to herself and others (by burning down her house, for instance.)   

NEWS COVERAGE & MORE INFORMATION

Legal Filing (PDF file)

For up-to-date information on the lawsuit, go to:

http://www.disabilityrightsca.org/advocacy/V.L.-v-Wagner/index.htm

Disability Rights California Press Release (PDF file)

Oakland Tribune, October 1, 2009

Advocates for disabled sue to stop IHSS cuts

"…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…"

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Los Angeles Times, October 1, 2009

Lawsuit seeks to block cuts to in-home care for the

elderly and disabled

"…The advocates are asking for an injunction before letters go out later this month to the 36,000 Californians whose aid would be eliminated and an additional estimated 97,000 who would lose some services. The cuts are set to go in effect on Nov. 1. Melinda Bird, senior counsel for Disability Rights California, accused the state of trying “to balance the budget on the backs of the poor and those with disabilities.” Officials plan to cut services to those with the lowest scores on a scale measuring recipients’ needs. But Bird called the scoring method “arbitrary, irrational and unfair.” Assembly Speaker Karen Bass (D-Los Angeles), who helped craft the budget, appeared somewhat supportive of the lawsuit…"

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