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Dominguez et al. v. Schwarzenegger et al.
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Background:
The IHSS program is funded by a combination of federal, state, and county money. The Federal share is 50%, the state share is 32.5% and the county share is 17.5%. State participation in wages and benefits is governed by Welfare and Institutions Code (WIC) Section 12306.1. Currently, the state will pay up to $12.10 per hour per provider ($11.50 in wages and $0.60 for benefits, per hour). However, each county, through the collective bargaining process, determines how much the actual wages and benefits will be.
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Summary:
In February 2009, the Legislature and Governor Schwarzenegger passed legislation to cut state participation in IHSS provider wages from $12.10 per hour ($11.50 in wages and $0.60 for benefits, per hour) to $10.10 per hour ($9.50 in wages and $0.60 in benefits, per hour) effective July 1, 2009. Many IHSS providers, consumers, and advocates were concerned that this would force IHSS workers in some counties to quit their work to find better paying jobs, leaving their consumer without a provider, and therefore placing the consumer at risk of unnecessary institutionalized. A lawsuit was filed by Martinez et al. (“et al.” means “and others” – in this case these were IHSS consumers and unions) against the State for violating the Americans with Disabilities Act, the Rehabilitation Act, and the procedural requirements of the Medicaid Act. This lawsuit was later renamed Dominguez et al. v. Schwarzenegger et al.
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STATUS
On May 26th, 2009 the Dominguez et al v. Schwarzenegger lawsuit was filed to prevent the state from cutting state participation in the provider wage rate by two dollars per hour. In July 2009, a federal court issued an injunction that prevented the State from reducing state participation in IHSS provider wages and health benefits without first conducting an analysis of the effect such a reduction would have on quality of and access to IHSS services. The Court also found that IHSS consumers “will suffer immediate and irreparable harm” as a result of the wage reductions. The State appealed this court decision; however the injunction was reaffirmed in March 2010. The State since filed to have the decision reviewed by the U.S. Supreme Court. The lawsuit, in conjunction with others, will be heard on a 15-day bench trial starting on December 5th, 2011.
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Potential Impact for UDW:
Over 15 counties in California pay IHSS provider wages and benefits over $10.10 per hour (over $9.50 in wages and/or over $0.60 in benefits). Four of these are UDW-represented counties: Placer, Riverside, San Luis Obispo, Santa Barbara counties. If the outcome of the lawsuit is in favor of the State, each of these counties will be 50% responsible to fund the difference between what they pay and the new maximum of $10.10 per hour (federal participation of 50% would continue until $16/hour). These counties would not get reimbursed by the state. This would be retroactive to July 1, 2009. This would create a huge financial burden for these counties, and would lower the ceiling on provider wages in every county in the state.
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Oster et al. v. Wagner
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Background:
During the IHSS assessment process, a county social worker “ranks” the consumer on a scale of 1 to 5 in a range of possible categories, such as domestic services, related services such as meal preparation, non-medical personal services such as bathing, and paramedical services such as insulin injections. Each rank number is supposed to correspond with the level of need of assistance in that category. Being given a rank of 1, for example, means the consumer does not need assistance in that task, whereas a 5 means they completely depend on assistance in that category. Each consumer is also assessed a Functional Index (FI) Score, which is a weighted average of all functional index rankings in all categories assessed to the consumer. In theory, FI ranks and scores are supposed to reflect the consumer’s level of need of in-home care. However, this ranking system sometimes does not truly reflect the needs of many IHSS consumers, including those with mental and developmental disabilities.
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Summary:
In July 2009, the Legislature and Governor Schwarzenegger passed legislation that eliminated IHSS services for consumers with Functional Index (FI) Scores below 2.0. It also cut IHSS domestic and related services for consumers with FI Scores below 4. These changes were supposed to take effect on November 1st, 2009. However, a lawsuit (originally named V.L. et al. v. Wagner) was filed, arguing that these changes in eligibility would place consumers at risk of harm to their health and safety, and at risk of unnecessary institutionalization, a violation of the federal Americans with Disabilities Act. According to the lawsuit, the decision to limit IHSS services also violates the federal Medicaid Maintenance of Effort and violates the due process constitutional guarantee. This lawsuit was later renamed Oster et al. v. Wagner.
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STATUS
On October 1st, 2009, the original lawsuit was filed to prevent enactment of the changes in eligibility related to FI scores. Later that month, a federal court judge issued a preliminary injunction ordering the State to stop implementation of the new law. The State appealed the decision and currently the case has been set aside until several lawsuits that are now in the U.S. Supreme Court are decided, or until further order of the court.
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Potential Impact for UDW:
At the time of the lawsuit in 2009, it was estimated that about 40,000 consumers across the State had FI Scores lower than 2.0, and thus would lose all services. Also, 97,000 consumers would lose their domestic and related services, or 30% of their total IHSS service hours. If the State is successful in this lawsuit and proceeds to implement the law a large percentage of the IHSS consumer population would lose some or all of their IHSS services.
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Beckwith v. Wagner
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Background:
In July 2009, legislation was passed by the Legislature and Governor Schwarzenegger that, among other things, created a new criminal background check requirement for existing and new IHSS providers. Existing law considered providers not eligible to provide care if they had convictions of or incarceration within the last 10 years following conviction of three crimes: fraud against a government or supportive services program, child abuse, or elder abuse. These are currently called “Tier 1” crimes.
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Summary:
The California Department of Social Services (CDSS) sent letters to counties stating that any individual convicted of any felony at any time is disqualified from being an IHSS provider. This superseded existing law, which only noted conviction of the three specified crimes (above) within the last 10 years. A lawsuit was filed against the State to prevent the CDSS from unilaterally disqualifying IHSS providers who were otherwise qualified under the law to get paid through the IHSS program to provide care.
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STATUS
Originally named Ellis v. Wagner, a lawsuit was filed against the State to rescind the new policy. The lawsuit was later renamed Beckwith v. Wagner. In February 2009, a Superior Court judge ordered CDSS to not use the new enrollment forms, to not disqualify providers for extraneous crimes and time spans, and to inform the providers who had been wrongfully disqualified that they can re-apply. Following a series of appeals, this decision was made final on May 31, 2011.
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