State Can Only Disqualify Workers Based On Specific Felonies and Other Convictions Already In State Law – Judge’s Ruling Stands Unless Higher State Court Overturns It

CDCAN DISABILITY RIGHTS REPORT 
#155-2010 –  AUGUST 24, 2010 – TUESDAY
CALIFORNIA DISABILITY COMMUNITY ACTION NETWORK:

SACRAMENTO, CALIF (CDCAN) [Updated 08/24/2010  3:20  PM  (Pacific Time)]  – Alameda Superior Court Judge David Hunter issued an order yesterday (August 23) that stops the Schwarzenegger Administration from moving forward in implementing new policies that would prohibit a person with any felony convictions and certain misdemeanors from working as an In-Home Supportive Services (IHSS) worker (provider).   [a pdf scanned copy of the 3 page order is attached   Full text of order is reprinted below]

The judge indicated that the various appeals of his original order of March 2010, did not mean his order was delayed  (stayed).  The State, which in May filed papers to appeal the Judge’s earlier ruling, can ask for a delay of the Judge’s order from the State Court of Appeals – or failing that – to the California Supreme Court.  

The original lawsuit filed last fall focused on the issue of the legality (and the impact of harm to IHSS recipients it would create) of the Schwarzenegger Administration’s new requirement that would ban anyone with any felony or certain misdemeanor convictions  from working as an IHSS provider, a requirement – the lawsuit and advocates contend  – goes beyond what the Legislature authorized last year.  Judge Hunter in March agreed and issued an order stopping the requirements from being implemented.  The ruling today was centered on the claim that the Schwarzenegger Administration was not complying with that March 2010 court order.

The Judge’s order comes while Democrats and Republicans in the Legislature and the Governor are still deadlocked on how to resolve the over $19 billion budget deficit – with California now 55 days without a state budget. 

Impact Of Judge’s Order

• Unless a higher state court overturns Judge Hunter’s order, the State – and the counties that actually administer their local IHSS program –  cannot go forward with the new requirements that would prohibit a person with any felony or certain specified misdemeanor convictions from being an IHSS worker – other than what is prohibited in existing State law (Welfare and Institutions Code Section 12305.81 (a), see below).
• The judge’s order impacts all of about 370,000 current IHSS workers and the thousands of others who may be in the process of applying and enrolling to be an IHSS worker.  It also impacts the over 460,000 children and adults with disabilities, mental health needs, the  blind and low income seniors who receive services under the IHSS program because of the availability of a worker.   That number includes thousands of children and adults with developmental disabilities who may be also receiving other community-based services coordinated by the 21 non-profit regional centers under the Department of Developmental Services. 
• As part of the 2009-2010 State Budget passed last year among several other changes to the program, requirements that all new and current IHSS workers go through an enrollment process that included fingerprinting and criminal background checks.  Current IHSS workers were, by July 1, required to at least have taken one of those steps in the enrollment process in order to continue being paid as an IHSS worker.   
• Under current state law persons receiving IHSS retain the right to hire (and fire) their IHSS worker, even those with felony and misdemeanor convictions – except for those specifically cited in California Welfare and Institutions Code Section 12305.81 (a), which Judge Hunter previously ruled earlier that the State could impose.  Persons receiving IHSS however often find that the availability of a reliable good worker is difficult given the low wages and benefits. 

Lawsuit Filed Last Fall By Social Justice Law Project

The judge responded to a motion (request) filed by attorney Peter Sheehan of the Oakland based Social Justice Law Project on behalf of Gail Ellis and five other IHSS workers and also 1 IHSS recipient (Mark Beckwith).   

The state lawsuit is now known as “Beckwith v. Wagner” (formerly “Ellis v. Wagner”).  Mark Beckwith is a person who receives services under IHSS and is a longtime advocate and John Wagner is the current director of the California Department of Social Services – the state agency that oversees statewide the IHSS program. 

The state lawsuit is one of several different cases involving In-Home Supportive Services.  Two separate federal lawsuits stopped other reductions or changes to the IHSS program last year, at least until higher federal courts decide differently:

• IHSS worker wages (cut to the State’s participation toward IHSS worker wages and benefits) was blocked by federal District Court Judge Claudia Wilken on June 25, 2009 last year.  That court ruling was upheld by the US 9th Circuit Court of Appeals on March 3, 2010. The Schwarzenegger Administration has appealed that ruling to the US Supreme Court, which has not yet determined whether it will take the case.  An announcement on whether or not it will take up the case is expected in October. 
• IHSS Eligibility for Services (eliminating or reducing services for persons receiving IHSS using “functional index scores” and “functional index rankings”) was also stopped by federal District Court Judge Claudia Wilken on October 19, 2009.  That ruling was appealed by the Schwarzenegger Administration to the US 9th Circuit Court of Appeals. The case was heard June 15, 2010 in San Francisco.  The court has not yet issued any decision, which could come at any time or could take months longer. 

Schwarzenegger Administration Took Steps Last Fall To Implement New Policy

• The Schwarzenegger Administration first took steps to implement the new policy – citing authority from the budget related bills passed by the Legislature and signed into law by the Governor in July 2009 – last fall. 
• Advocates and Democratic legislative budget staff and some legislators have disputed that the 2009-2010 State budget gave the State any authority to impose restrictions that banned a person from working in the IHSS program who had any felony or certain misdemeanors convictions beyond what was already in State law. 
• The Department of Social Services issued in October 2009 procedures in an “All County Letter” to county welfare directors and others to disqualify a person who had been convicted of any felony and certain specific misdemeanors from being an IHSS worker.   The department on August 11, 2010 released draft new All County Letter that was meant to move forward on those new qualification requirements.
• The State was stopped from implementing those IHSS worker requirements dealing with felony convictions on November 24, 2009, by a temporary restraining order issued by Alameda County Superior Court Judge Frank Roesch, after the Social Justice Law Project filed the petition – the writ – that requested that the court stop the State from implementing the new requirements. 
• Roesch’s order – which remained in effect at least until yesterday when it was replaced by the new order issued by Judge Hunter, who replaced Roesch in January 2010, on the case. 
• The November 24, 2009 temporary order stopped the Schwarzenegger Administration from implementing the new requirements that would have prevented persons with any felony convictions from applying for or continuing to work as an In-Home Supportive Services (IHSS) worker.
• The August 23, 2010 court order by Judge Hunter in effect reinstates that previous order stopping the State from implementing its new policies that banned a person with any felony or certain misdemeanor convictions beyond what is already in existing State law. 

Judge’s Order

Note:  a “writ of mandate” is a court order to a government agency, including to another court, to follow the law by correcting its prior actions or in this instance, stopping an illegal act.  [I have retyped exactly the entire 3 page order even though a pdf scanned copy is attached.  The scanned copy is a photo image of the order and a person who is blind or sight impaired would not be able to use their readers to read it. – Marty Omoto]

SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF ALAMEDA

[Stamp indicating order was filed, Alameda County Aug 23 2010

Clerk of the Superior Court - signed by deputy clerk]

GAIL ELLIS, et. al.,

   Petitioners,

vs.

JOHN WAGNER, DIRECTOR OF THE CALIFORNIA 
DEPARTMENT OF SOCIAL SERVICES, et al.,

   Respondent

No. RG09-484051

ORDER GRANTING

PETITIONERS’ APPLICATION

FOR PROVISIONAL RELIEF

“The ex parte Application of Petitioners Mark Beckwith, et al. for Provisional Relief came on regularly for hearing on August 18, 2010 in Department 520 of the above-entitled court, the Honorable Hunter presiding.  The Court has considered the papers filed in connection with the Application and the arguments of counsel, and, good cause appearing, HEREBY ORDERS that the Application is GRANTED.”

    “On February 9, 2010, the Court entered its Order granting the Petition for Writ of Mandate in this case; the Court subsequently issued its Writ of Mandate on March 26, 2010.  Petitioners then filed a Notice of Appeal (as to a somewhat limited issue) on May 21, 2010, and Respondents filed a Notice of Appeal on May 24, 2010.  Respondents have recently prepared a draft notice to all County Welfare Directors instructing them that this Court’s rulings in this case are stayed pending the disposition of their appeal.  (See Petitioners’ Request for Judicial Notice, Exhibit 2.)”

   “The Court hereby orders that the cross-appeals in this case do not operate as a stay of the Writ of Mandate issued on March 26, 2010.  (See Code of Civil Procedure Section 1110b).  The Court is satisfied with the showings  by one or more Petitioners that they (and/or those individuals to whom they are providing in-home care) will suffer irreparable damage if the Writ of Mandate is stayed pending the appeal.  (See Declarations attached to Application.)”

Date:  8-23-2010   

(Signed)

David Hunter

Judge of the Superior Court

What the Judge’s Order Means

Unless the Court of Appeals – or the California Supreme Court- reverses the Judge’s order to stay (delay) the implementation of the new policies that would disqualify a person who had any felonies and certain misdemeanors convictions from being an IHSS worker (provider) only the existing State laws still apply regarding qualifications in Section 12305.81 (a) of the California Welfare and Institutions Code as follows:

“12305.81.  (a) Notwithstanding any other law, a person shall not be eligible to provide or receive payment for providing supportive services for 10 years following a conviction for, or incarceration following a conviction for, fraud against a government health care or supportive services program, including Medicare, Medicaid, or services provided under Title V, Title XX, or Title XXI of the federal Social Security Act or a violation of subdivision (a) of Section 273a of the Penal Code, or Section 368 of the Penal Code, or similar violations in another jurisdiction. The department and the State Department of Health Care Services shall develop a provider enrollment form that each person seeking to provide supportive services shall complete, sign under penalty of perjury, and submit to the county. Submission of the form shall include the photocopying by the county of original documentation verifying the provider’s identity, and shall be considered as an application to render services under the Medi-Cal program consistent with subdivision (c) of Section 14043.1. A provider shall submit the form to the county in person, and the county shall retain the form and a copy of the identification documentation in the file of the provider. The form shall contain statements to the following effect:

(1) A person who, in the last 10 years, has been convicted for, or incarcerated following conviction for, fraud against a government health care or supportive services program is not eligible to be enrolled as a provider or to receive payment for providing supportive services.

(2) An individual who, in the last 10 years, has been convicted for, or incarcerated following conviction for, a violation of subdivision (a) of Section 273a of the Penal Code or Section 368 of the Penal Code, or similar violations in another jurisdiction, is not eligible to be enrolled as a provider or to receive payment for providing supportive services.

(3) A statement declaring that the person has not, in the last 10 years, been convicted or incarcerated following conviction for a crime involving fraud against a government health care or supportive services program.

(4) A statement declaring that he or she has not, in the last 10 years, been convicted for, or incarcerated following conviction for, a violation of subdivision (a) of Section 273a of the Penal Code or Section 368 of the Penal Code, or similar violations in another

jurisdiction.”