CALIFORNIA DISABILITY COMMUNITY ACTION NETWORK
Report #2042011 – DECEMBER 13, 2011 - TUESDAY NIGHT

California Budget Crisis:
FEDERAL DISTRICT COURT HEARING ON IHSS 20% CUT SET FOR JANUARY 19TH – TEMPORARY RESTRAINING ORDER BLOCKING THAT CUT WILL REMAIN IN FORCE UNTIL THAT HEARING DATE 

20% IHSS Reduction Part of the $1 Billion in State Budget “Trigger Cuts” Authorized Today By Governor Brown – January 19th Hearing Also Will Consider ”Class Certification” of Lawsuit

SACRAMENTO, CA (CDCAN)  [Last updated 12/13/2011 07:41 PM] -  The original December 15th federal district court hearing on the lawsuit (David Oster, et al v. Will Lightbourne and Toby Douglas) that – at least temporarily – has stopped implementation of a 20% across-the-board reduction in service hours for possibly hundreds of thousands of people with disabilities, mental health needs and seniors in the In-Home Supportive Services (IHSS) program has been rescheduled for January 19th (Thursday). That hearing date is subject to change (as is any court hearing date).

The temporary restraining order (TRO) that was issued December 1st by US District Court Judge Claudia Wilken that required the Brown Administration to halt all actions to implement the 20% across-the-board cut will remain in force until that new January 19th when the federal district court will consider whether or not to issue a more permanent court order that would block implementation of the 20% IHSS service hours cut - called a preliminary injunction. 

That reduction became real with the announcement today by Governor Brown that the state budget “trigger cuts” will be pulled, implementing effective January 1, 2012 (or later depending on the specific cuts in other programs and budget areas) $1 billion in automatic mid-year spending reductions – including the $100 million reduction to IHSS (currently blocked by court order) and $100 million reduction to developmental services – though that reduction to developmental services will be achieved not by additional cuts to programs or providers, but through savings achieved lower than expected spending in the current budget year.  .  . 

The January 5th court hearing to determine class certification has also been changed, with that issue scheduled to be heard also on January 19th. ”Class certification” is an issue where the court considers a request by those filing the lawsuit to apply the case to a group or class of people – in this specific instance, all the recipients of IHSS who would be impacted by the 20% reduction.       

The lawsuit was filed on behalf of IHSS recipients by Disability Rights California (DRC), Disability Rights Legal Center, National Senior Citizens Law Center, the National Health Law Program and San Diego attorney Charles Wolfinger. The law firm of Altshuler Berzon LLP is also counsel in the lawsuit, representing unions including five SEIU locals and United Domestic Workers-AFSCME (American Federation of State, County and Municipal Employees), whose members are IHSS caregivers and attendants.

The case number is: CV 09-04668 CW (David Oster, et al v. Will Lightbourne and Toby Douglas.)

Department of Social services Issues Last Week New All County Letter On IHSS Cut

*  As previously reported,  the Department of Social Services, the state agency that oversees statewide the IHSS program, issued last week on December 7th, new instructions to the counties rescinding an earlier document that outlined implementation steps for a 20% across-the-board IHSS cut – and attached a copy of the judge’s court order. 

*  See below for complete text of that document – called an “All County Letter” .
What the Judge’s December 1st Order Means
*  As previously reported last week on December 1st by CDCAN, the court order issued today means that – at least until December 15th – the Brown Administration cannot proceed further on the 20% reduction in service hours to those persons receiving IHSS and not eligible for an exemption from that cut.
* The Brown Administration is required by the temporary restraining order to rescind any and all notices to the counties and recipients regarding implementation of the 20% reduction and inform all counties that the recent ‘All County Letter” is rescinded (which it did by issuing on December 7th the new All County Letter).  .
* Over 370,000 people with disabilities – including children and seniors and those with mental health needs – are impacted by the planned 20% reduction and the restraining order stopping it today. Hundreds of thousands of IHSS workers are also impacted, who faced significant loss of hours and in some cases, possible loss of health benefits if the reduction is implemented.
* The judge’s order does not impact directly (though could influence) new reductions to IHSS and other health and human service programs that the Governor could include in his 2012-2013 State budget on January 10, 2012. The Governor is expected to propose significant major new reductions in order to close the projected $13 billion on-going budget shortfall.
*  The judge’s order does not impact the existing 3.6% reduction in IHSS service hours, which  is currently set to continue until June 30, 2012. If the State budget “trigger cut” is pulled and the 20% is allowed to proceed, a person with disabilities, mental health needs, the blind or seniors in the IHSS program could face a total reduction in service hours of 23.6%., unless they were exempted from the reduction. 

COMPLETE TEXT OF “ALL COUNTY LETTER” COMPLYING WITH COURT ORDER STOPPING IHSS 20% REDUCTION 

December 7, 2011
ALL-COUNTY LETTER NO.: 11-84

TO: ALL COUNTY WELFARE DIRECTORS
IHSS PROGRAM MANAGERS

SUBJECT: DAVID OSTER, et al., v. WILL LIGHTBOURNE, et al., TEMPORARY RESTRAINING ORDER HALTING IMPLEMENTATION OF THE 20-PERCENT REDUCTION IN IHSS RECIPIENTS’ AUTHORIZED HOURS
REFERENCE: ACL NO. 11-81, DATED NOVEMBER 29, 2011

This All-County Letter (ACL) provides information regarding a temporary restraining order (TRO) issued in DAVID OSTER, et al. v. WILL LIGHTBOURNE, et al., a lawsuit filed in the United States District Court for the Northern District Of California, San Francisco/Oakland Division, challenging the 20-percent reduction in In-Home Supportive Services (IHSS) recipients’ authorized service hours scheduled to take effect on January 1, 2012, pursuant to Welfare and Institutions Code (W&IC) section 12301.07. On December 1, 2011, the court issued a TRO directing the California Department of Social Services (CDSS) to immediately halt implementation of the 20-percent reduction. A copy of the TRO is attached.

For the reasons described below, ACL 11-81 is hereby rescinded. The information contained in this ACL supersedes and replaces ACL 11-81.
BACKGROUND
Senate Bill (SB) 73 (Chapter 34, Statutes of 2011) added section 12301.07 to the W&IC, which requires CDSS to implement a 20-percent reduction in each IHSS recipient’s authorized service hours effective January 1, 2012, in the event that the state budget revenue forecast in December 2011 is less than approximately $87.5 billion (as specified in Section 3.94 of the Budget Act of 2011).    [CDCAN Note: SB 73 is the 2011-2012 State Budget trailer bill that authorizes.the 20% reduction ]

In anticipation that the budget reduction trigger provision would become operative, CDSS, on November 29, 2011, released ACL No. 11-81 which provided counties with instructions for implementing the 20-percent reduction in authorized service hours.
On December 1, 2011, plaintiffs sought a TRO in federal district court claiming that CDSS’ efforts to implement SB 73, and the legislation itself, were potentially in violation of federal law. The court granted a TRO prohibiting CDSS from taking any actions to implement the reduction in IHSS recipients’ service hours mandated by SB 73.
Specifically, the TRO directs CDSS to take the following steps:
• Take all actions necessary to ensure that no IHSS recipient’ hours are reduced because of SB 73;
• Refrain from making any changes to the Case Management, Information, and Payrolling System (CMIPS) to implement SB 73 and reverse any changes to CMIPS that have already been made;
• Rescind ACL No. 11-81 and inform all counties that it has been rescinded and that the reductions in IHSS recipients’ service hours mandated by SB 73 have been temporarily enjoined; and
• Halt issuance of any notices (including but not limited to Notices of Action), letters, time sheets, e-mails, web postings, or any other written materials to IHSS recipients or providers in any way suggesting that their authorized hours have
been or will be reduced, and rescind any notices, etc. already issued.

STATE RESPONSIBILITIES
The ACL No. 11-81 stated that in November 2011, programming changes would be made to CMIPS to calculate the 20-percent reduction in each IHSS recipient’s total monthly authorized service hours. The CMIPS implementation of the 20-percent reduction did not occur.
The ACL 11-81 also stated that, by December 15, 2011, CDSS would mail out Notices of Action to inform recipients that, as a result of a new state law, their authorized service hours will be reduced by 20-percent, effective January 1, 2012. Aforementioned notices have not, and will not be issued pending further authorization from the court.

COUNTY RESPONSIBILITIES
Counties are instructed to immediately cease any and all actions being taken pursuant to ACL 11-81, or to otherwise implement SB 73.
CDSS is aware that some recipients already have completed and submitted Applications for IHSS Supplemental Care (SOC 877). Counties are instructed to retain any SOC 877 forms received pending the final resolution of this litigation.
Should you have questions regarding any information in this ACL, please contact the Adult Programs Policy and Operations Bureau at (916) 651-5350.

Sincerely,
Original Document Signed By:
EILEEN CARROLL
Deputy Director
Adult Programs Division
Attachment
c: CWDA [copy to California Welfare Directors Association]

FEDERAL JUDGE’S ORDER
The following is the actual order issued by US District Court Judge Claudia Wilken – issued December 1st, and attached to the December 7th “All County Letter”:  CDCAN is sending this out again with this report to make sure that people across the State are aware that the reduction to IHSS has been – for now until the January 19th court hearing date – blocked from implementation:  

Accordingly, IT IS HEREBY ORDERED that, pending an order by this Court as to whether a preliminary injunction should issue, Defendants, their officers, agents, servants, employees, and attorneys, and all persons acting by, through, under, or in concert with Defendants (referred to collectively hereinafter as “Defendants”) are enjoined from taking any actions to implement the reduction in IHSS recipients’ service hours mandated by SB 73 [CDCAN Note: SB 73 is the 2011-2012 State Budget trailer bill that authorizes.the 20% reduction ]

IT IS FURTHER ORDERED that Plaintiffs’ papers filed in support of their application for a temporary restraining order shall be treated as Plaintiffs’ moving papers for a preliminary injunction. Defendants may file and serve their opposition to Plaintiffs’ request for a preliminary injunction on or before December 7, 2011. In the event that Defendants file their opposition by that date, Plaintiffs may file a reply brief in support of their motion for preliminary injunction no later than December 9, 2011, and a hearing on Plaintiffs’ request will be held on December 15, 2011 at 2:00 pm [CDCAN Note: this hearing date is now set for January 19, 2012 as of December 13th] .

 Alternatively, Defendants may file and serve their opposition to Plaintiffs’ request for a preliminary injunction at their convenience. Plaintiffs shall file a reply brief in support of their motion no later than two full court days thereafter. A hearing on Plaintiffs’ request for a preliminary injunction will be scheduled for the first or second Thursday after Plaintiffs’ reply is filed, at 2:00 pm. The temporary restraining order shall remain in effect until the day the hearing
is held.

IT IS SO ORDERED.
Dated: December 1, 2011
[signed]
Honorable Claudia A. Wilken
United States District Court Judge