Following is a summary of recent litigation with great potential
to impact IHSS providers.

For additional documents and detail, go to  IHSS Coalition, litigation page  

Dominguez et al. v. Schwarzenegger et al.

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, and Santa Barbara Counties.  If the outcome of the lawsuit is in favor of the State, each of these counties will be 100% responsible to fund the difference between what they pay and the new maximum of $10.10 per 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 place a ceiling on provider wages in every county in the state.

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.

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.

STATUS:

On May 26^th, 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 Supreme Court tied this case with another lawsuit for which arguments were heard on October 3^rd. The Court will likely rule on that case sometime between November and June 2012.  On February 22nd, 2012, the US Supreme Court sent this case (among others) back to the US 9th Circuit Court of Appeals for further review. This action will keep this lawsuit alive and will continue to block the State from implementing provider wage reductions until the lower court comes to a resolution

More Information

• February 22, 2012 CDCAN Report: US Supreme Court Sends Back to Lower Federal Appeals Court 3 Medi-Cal Lawsuits for Further Review
• Read 2/22/12 US Supreme Court Decision: 20 Page opinion
• Audio from Supreme Court Case on IHSS Wages
• CDCAN Disability Rights Report #172
  US Supreme Court Hears Major California Medi-Cal Provider Rate Reduction Cases 
• Supreme Court of the United States Blog
  U.S. Supreme Court Hearing on Case that Impacts Medi-Cal Rates and State Participation in IHSS Wages

Oster et al. v. Lightbourne et al.

Potential Impact for UDW:

If the State wins the appeal, the 20% Across the Board cut may be implemented. This would be detrimental to IHSS consumers’ hours of care, potentially forcing consumers into institutional care facilities. This would also be detrimental to IHSS providers’ monthly income, potentially forcing providers to look for another job in addition to or instead of their current positions as providers.

Background:

On June 30th, 2011, SB 73 was signed into law. This bill implemented a budget trigger specifying if the state fell short $1 billion dollars or more of the $4 billion revenue projection, then there would be a 20% across-the-board cut in IHSS service hours for recipients. The Department of Finance will determine by December 15, 2011 if General Fund revenue will meet anticipated levels. Tax revenue collected to date indicates that the budget trigger will likely be pulled.

Summary:
 
UDW and other organizations worked together to file a lawsuit to prevent the 20% reduction from taking place. This lawsuit is similar to the Oster v. Wagner lawsuit from 2009 in that the state instructed counties to use Functional Index ranks to determine whether someone is exempt from the reduction in services. The lawsuit also contends that eligibility for a Supplemental Care Application is based on an artificial formula, and the method of implementation for the cut violates principles of due process. 

STATUS:

On November 29th, 2011, the Department of Social Services sent an All-County Letter instructing counties to begin preparing for the 20% reduction to IHSS recipients. In response, on December 1st, UDW and other provider unions and disability and senior advocacy organizations requested an emergency temporary restraining order (TRO) in United States District Court to prevent the state from moving ahead with implementing the 20% across the board reduction. The TRO was granted and the Judge combined this lawsuit with Oster et al. v. Wagner (2009), also regarding IHSS service cuts, currently in the US Supreme Court. On March 2nd, 2012, Judge Wilken’s ordered to enjoin (prevent) the state’s planned implementation of the 20% cut. This order established a preliminary injunction which states that the plaintiffs are likely to suffer irreparable harm in the absence of preliminary relief. The order explains that the state must individually reassess IHSS recipients before reducing hours and may only reduce hours that are unnecessary to keep people safely at home.

More Information

• See premliminary legal injunction (pdf)
• Order granting preliminary injunction (pdf)
• Media/news coverage of January 19th court hearing 
• State’s instruction to counties re this lawsuit:
  All County Letter (ACL) 11-84  (December 7, 2011) 
• Original Temporary Restraining Order (TRO) (pdf)

Oster et al. v. Wagner

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 over their IHSS services.

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.

Summary:

In July 2009, the Legislature and Governor Schwarzenegger passed legislation that cut 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 cuts were supposed to take effect on November 1^st, 2009. However, a lawsuit (originally named V.L. et al. v. Wagner et al.) was filed, arguing that the cuts 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 et al.

STATUS:

On October 1^st, 2009, the original lawsuit was filed to prevent enactment of the cuts and 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 withdrawn until several lawsuits that are now in the U.S. Supreme Court are decided, or until further order of the court. Arguments for the lawsuits currently in the Supreme Court were heard October 3^rd, and the Supreme Court will likely rule on the case between November and June 2012.

Beckwith v. Wagner

Final Impact for UDW:

The final decision prevented the State from using a broader list of crimes to deem an otherwise lawfully eligible provider ineligible to provide IHSS services.

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.

Summary:

The California Department of Social Services (CDSS) sent letters to counties stating that a new or existing provider 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. Beckwith et al. (an IHSS consumer and others), filed a lawsuit 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.

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.  On December 2nd, 2012, the court ordered the state to reimburse the plaintiff for legal fees related to this case

Woodruff v. County of San Diego

In-Home Supportive Services Public Authority

Potential Impact for UDW:

If Woodruff is successful in the lawsuit, this may impact the hours of pay an IHSS provider may legally claim for providing services.

Background:

The IHSS program provides services as described in Welfare and Institutions Code 12300 (b-e) to the aged, blind, and disabled. IHSS independent providers (IP’s) are only paid for those specified services. The IHSS Public Authority in the County of San Diego requires someone to attend an orientation to be placed on a registry list of providers. Although providers are paid to perform a variety of tasks, there are tasks or actions that a provider does not get paid for. For example, IHSS providers do not get paid for time spent traveling to and from an IHSS recipient’s home or between recipients’ homes (worksites). As well, there are no current laws requiring IHSS providers to be paid for the time spent attending an orientation.

Summary:

An IHSS provider applicant, Ms. Woodruff, sued the County of San Diego Public Authority on the grounds that she was not paid at least a minimum wage while she was working, and sought compensation. She stated that IHSS does not pay for time travelled between worksites, and “IHSS ‘pro-rates’ hourly wages when a recipient’s eligibility to receive in-home supportive services terminates prior to the end of a calendar month.”

STATUS:  

On November 26, 2008 the class-action hour and wage claim was filed and brought to the Superior Court of San Diego. Although the Public Authority acknowledged the point of Woodruff’s claim, they denied that it is a relevant or valid argument. The court found in favor of the Public Authority regarding overtime compensation, minimum wage, penalty wages, and injunctive relief. On May 6^th, 2011, the court also ruled that the Public Authority does not owe payment to a person who attends an IHSS orientation. Ten days later, Woodruff and others filed an amendment to the original complaint. On August 19, 2011, one of the parties in the case requested a Dismissal without Prejudice. The judge hearing the case will decide on February 24^th, 2012 if the lawsuit is ready to move to trial.

County of Los Angeles v. Los Angeles County

Employee Relations Commission

Potential Impact for UDW:

This is an issue of unionizing rights of workers as a whole. The information sought by SEIU local 721 is necessary for the union to communicate with and represent County workers. Without this information some County workers may not receive the union representation to which they are entitled.

Background:

During collective bargaining, the Union (SEIU, Local 721) asked the County for the personal information of County employees in the bargaining unit who are not Union members. The County refused. The Union filed an unfair employee-relations practice charge with the Employee Relations Commission in which it contended the County violated sections 12(a)(3) and 151 of the County’s Employee Relations Ordinance. Following a hearing before an administrative hearing officer, the Commission agreed with the Union. (http://www.gmsr.com/writing/scw-cola.pdf)

Summary:

The Los Angeles County Employees Relations Commission ordered the County of Los Angeles to release the names, home addresses, and home telephone numbers of non-union county employees to the union. The County of Los Angeles disagreed, asserting the privacy rights of non-union member county employees and challenged the decision.

STATUS:  

The County of Los Angeles filed a petition to the California Court of Appeal. The Court of Appeal ordered the previous decision to be reversed and gave the trial court direction to enter a new order. The new order would deny the County’s petition but would direct the county to give non-member employees notice and an opportunity to object before disclosure of their personal information to the union, SEIU Local 721. (http://caselaw.findlaw.com/summary/opinion/ca-court-of-appeal/2010/12/14/253278.html).

The County appealed the case to the California Supreme Court, which granted review of the case on June 16^th, 2011 and ordered the County to file their opening argument. SEIU local 721 filed a full brief November 8th, 2011. Allies of the Los Angeles County Employee Relations Commission and SEIU subsequently filed briefs to support them, including UAPD, UNITE HERE, AFT local 1931, AFSCME, CFA, CSEA, CTA, IFPTE local 21, SEIU-ULTCW, CUHW, SEIU United Healthcare Workers West, and the California Public Employment Relations Board.  Los Angeles County filed a response brief to several of these on January 13th, 2011.

Leon Brown v. County of Los Angeles et al.

Potential Impact for UDW:

If the State wins the appeal, the 20% Across the Board cut may be implemented. This would be detrimental to IHSS consumers’ hours of care, potentially forcing consumers into institutional care facilities. This would also be detrimental to IHSS providers’ monthly income, potentially forcing providers to look for another job in addition to or instead of their current positions as providers.

Background:

According to the Welfare and Institutions Code Section 12300(h)(3) and 12303.4 (b), an IHSS recipient may not be authorized to receive beyond 283 hours of services, including protective supervision, per month. However, a recipient of Protective Supervision must show need for supervision 24-hours per day due to a mental impairment (MPP Sections 30-757.173 (a) and 30-757.171.). Thus, a provider may provide 24-hour Protective Supervision but may only be paid for less than half of the time they are providing supervision (roughly 9.5 hours per day, every day of the month).

Summary:

Leon Brown filed a class action lawsuit seeking compensation for unpaid hours of care, including overtime payment.

STATUS:

Brown filed a complaint against the County of Los Angeles on March 4^th, 2011 and filed an amendment to it on June 13^th. The County filed an answer to the amended complaint September 1^st, 2011.  A case management hearing is scheduled for March 9th, 2012. (http://www.lasuperiorcourt.org/civilcasesummary/index.asp)