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Separate court proceedings in California and Louisiana last week upheld the right of elders and people with disabilities to receive care in their homes under the Americans with Disabilities Act (ADA).

In California, federal judge Claudia Wilken issued a preliminary injunction on Jan. 19 blocking the state from enacting a 20 percent cut to the In-Home Supportive Services (IHSS) program, which provides care to nearly 450,000 elders and people with disabilities who have Medicaid.

The cuts were initially scheduled to take place on Jan. 1, but were temporarily halted by Wilken last December due to concerns that they violated the ADA. Wilken reiterated those concerns in her latest injunction.

If ever enacted, the IHSS budget cut would cause 372,000 IHSS consumers to see reductions in home care services, possibly forcing them into nursing homes or other institutions — a violation of the ADA. In 1999, the Supreme Court ruled that the ADA gives seniors and people with disabilities the right to live at home if their care needs can be reasonably met there.

“Judge Wilken has consistently recognized how crucial IHSS is for people with disabilities in California,” said Donna Calame, the executive director of the San Francisco IHSS Public Authority and a PHI board member.

“Her ruling was terrific for both technical legal reasons and because it continues, for the time being, the current level of service hours to people who live in borderline poverty situations — both consumers and the workers who assist them,” Calame added.

The state plans to appeal Wilken’s decision to the Ninth Circuit Court of Appeals. Last month the Ninth Circuit ruled that Washington State had violated the ADA by cutting its Medicaid in-home care program by 10 percent.

Louisiana Lawsuit Settled

Meanwhile, in Louisiana, advocates for elders and people with disabilities reached a settlement with the state over a reduction in-home care services there.

Advocacy Center and AARP Foundation Litigation advocates had filed a class action lawsuit in September 2010, arguing that the state was violating the ADA by imposing a 32-hour weekly cap on consumers enrolled in the state’s Medicaid in-home services program.

As part of the settlement (pdf), state officials will request 200 waivers from the federal government allowing Louisiana residents who receive Medicaid to qualify for long-term personal care services.

The waivers will be awarded to consumers who can demonstrate that the 32-hour cap would force them to transfer into a nursing home.

Ken Zeller, a senior AARP attorney, told the Associated Press that the settlement is “win-win” because it “allows people to age in the place they know and love and at the same time saves the state money in more costly nursing home placements.”

– by Matthew Ozga

Gov. Jerry Brown

To help fill the $9.2 billion gap in California’s 2012-2013 budget, Governor Jerry Brown’s (D) budget proposal includes cuts of $163.8 million to the In-Home Supportive Services (IHSS) Program by eliminating domestic assistance — such as meal preparation, food shopping, laundry, and housework — for clients who reside in the same home as their caregivers.

The IHSS program provides personal care — including help with bathing, dressing, toileting, and feeding — and domestic services to about 435,000 low-income elders, the blind, and people with disabilities who live in their own homes but are at risk for nursing home placement without the services and supports that the program provides.

About 60 percent of IHSS clients would be affected should the proposed cuts take effect at the start of the new fiscal year on July 1, according to an article in the Sacramento Bee.

The caregivers, many of whom are family members, receive hourly wages and benefits between $8 and $14.78, reports the publication.

Cuts Deemed “Unwise”

Calling the proposed cuts to the IHSS “unwise,” a Los Angeles Times editorial says that “Slashing or ending that care means people in need will have to go to nursing homes, which can also be on the state tab but are more expensive.”

“The general public does not understand how easy it is to end up in a nursing home because it is the only place where care will be provided,” explained San Francisco IHSS Public Authority Executive Director Donna Calame, who is also a PHI board member.

“Sometimes, the simple acts of assisting someone with food shopping and preparation are all that keep a person well nourished and out of a hospital or nursing home. For a very few number of hours per IHSS consumer per month, California will not be saving very much money with these cuts and is risking much higher public expenditures for care in an institution.”

The state’s share of the IHSS Program costs is projected to be about $1.4 billion for 2012-13; the remaining costs are covered by state and county funds, reports the Sacramento Bee.

“There is an institutional bias in public funding of long-term services and supports,” Calame said. “IHSS advocates certainly hope the legislature will reject this proposal from Governor Brown.”

Brown has also proposed closing the budget gap by increasing revenues through a temporary half-cent sales tax increase and imposing higher taxes on the rich. A ballot measure which will be voted on in next November’s election will determine whether these proposals will become effective.

California had planned to cut the IHSS Program services by 20 percent beginning on January 1, as part of automatic, midyear across-the-board cuts enacted to offset tax revenue shortfalls. Disability Rights California filed a suit contending that these cuts violated the Americans with Disabilities Act, and a U.S. District Court judge ruled to temporarily halt them.

– by Deane Beebe

A December ruling by the Ninth U.S. Circuit Court of Appeals could prevent massive cuts to California’s In-Home Supportive Services (IHSS) program.

The Dec. 16 decision (pdf) by the San Francisco-based U.S. Court of Appeals did not directly address California. Rather, it centered on 12 Washington State Medicaid consumers who sued the state for its decision last February to reduce in-home care hours by 10 percent.

The Ninth Circuit found that the dozen plaintiffs would likely be forced to live in nursing homes as a result of the 10 percent cut — a violation of the federal Americans with Disabilities Act (ADA). The court therefore restored in-home services for the plaintiffs.

The court did not overturn the 10 percent cut, however, since the lawsuit was not presented as a class action on behalf of all 45,000 Washington State in-home care recipients.

Implications for California

The Ninth Circuit’s decision has clear implications for another case involving cuts to the California IHSS program.

On Jan. 19, U.S. District Court Judge Claudia Wilken will preside over a hearing to determine whether the state of California can legally proceed with a proposed 20 percent cut to IHSS, which provides care to 440,000 low-income elders and people with disabilities.

In December, Wilken halted the proposed cuts — which had been scheduled to take effect Jan. 1 — because they potentially violated the ADA and the Social Security Act, among other federal laws.

Wilken will have to take the Ninth Circuit’s recent decision into account during the upcoming hearing.

“The Ninth Circuit’s conclusion that loss of hours of home care services exacerbates people’s risk of involuntary institutionalization is very relevant to the case in California,” attorney Stacey Leyton told the San Francisco Chronicle in December.

– by Matthew Ozga

A federal judge ordered a temporary halt to potentially disastrous cuts to California’s In-Home Supportive Services program last week.

The cuts — totaling $100 million, or 20 percent of IHSS’s overall budget — were scheduled to begin Jan. 1, triggered by the state’s failure to take in an additional $4 billion in revenue in 2011.

However, Judge Claudia Wilken handed down a temporary restraining order (pdf) on Dec. 1, suspending the state from enacting the cuts until a hearing is held on their legality.

In the restraining order, Wilken said there are “serious questions” as to whether the cuts violate several federal laws, including the Social Security Act and the Americans with Disabilities Act.

The judge’s ruling allows those who rely on IHSS to live in their homes and communities “to get through the holidays without fear of losing their in-home care and being forced into institutions,” said Laphonza Butler, president of SEIU United Long Term Care Workers, in a statement. SEIU had filed the request that led to the restraining order.

The California IHSS program provides care to 440,000 low-income elders and people with disabilities. An estimated 372,000 of those consumers would see service reductions if the proposed 20 percent cuts are ever enacted.

Last year’s state budget reduced IHSS funding by 3.6 percent.

– by Matthew Ozga

Three brief stories on direct care:

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Standards Lowered for Some Hawaii Caregivers

Hawaii has reduced its qualification requirements for part-time caregivers working in community-based adult foster homes.

As a result of legislation signed by Governor Neil Abercrombie (D) in July, nurse aides who provide less than five hours of care daily (or less than 28 hours weekly) in adult foster homes no longer have to be certified.

To become certified, nurse aides must take a state-administered test every two years to demonstrate continued mastery of their skills. Uncertified nurse aides are trained but not tested.

Advocates for the elderly say that the degraded qualifications could lead to worse quality of care in adult foster homes.

The lowered qualifications apply only to adult foster homes with three residents, the maximum allowable in Hawaii’s Community Care Foster Family Homes program.

The changes to the qualifications are set to expire in June 2013, at which point lawmakers will decide whether to extend them permanently.

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Boston College Receives HHS Grant to Improve Home- and Community-Based Care Competencies

The Department of Health and Human Services (HHS) has awarded $2.25 million to Boston College’s Graduate School of Social Work to bolster consumer direction in home- and community-based care settings.

The grant will fund a three-year program called Accelerating Participant Direction Philosophy and Models in the Aging Network.

The program’s overarching goals are to identify the skills necessary to jobs that help people obtain home- and community-based services, and to enhance providers’ ability to ensure consumer direction.

Announcing the grant on July 26, HHS Assistant Secretary for Aging Kathy Greenlee said that the grant is “an investment that will help strengthen our commitment toward providing home- and community-based services…based on both the needs and preferences of the consumer.”

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PHI Board Member Calame Honored in San Francisco

San Francisco Mayor Edwin Lee (D) proclaimed July 21, 2011, to be “Donna Calame Day” in honor of the executive director of the San Francisco In-Home Supportive Services (IHSS) Public Authority.

Calame, a PHI board member, was honored for her career-long dedication to helping people with disabilities exercise their right to “the widest range of choices possible for [living] outside of institutional settings with appropriate assistance,” according to the city’s proclamation.

Since 1996, the San Francisco IHSS Public Authority has served as the employer of record for the city’s home care workers, fighting for better wages, benefits, and supports.

– by Matthew Ozga

California’s 2011-12 state budget, signed by Governor Jerry Brown (D) on June 30, contains a provision that could automatically trigger a $100 million cut to the In-Home Supportive Services (IHSS) program at the start of 2012.

The final $86 billion budget projects that the state will receive an additional $4 billion in revenue by mid-December. If the anticipated revenue falls short — only $2 billion to $3 billion is realized — then the IHSS program cuts will take effect, according to the Sacramento Bee.

“IHSS advocates fear the revenue projections will not be met and that the likely impact on consumers will be severe,” said Donna Calame, executive director of the San Francisco IHSS Public Authority and PHI board member.

“Consumers have already sustained cuts in Medi-Cal and an increase in co-pays. About 85 percent have seen their Supplemental Security Income/State Supplementary Payment cut from $904 to $830 a month,” Calame said.

Services and Wages Would Be Cut

Services provided by IHSS would be reduced by 20 percent should the cuts be triggered, reports the Associated Press.

“Workers could experience up to a 20 percent pay cut,” Calame said, “and with a drop in work hours, lose their health care coverage.”

The IHSS program was already scaled back last February with a 3.6 percent cut in hours.

If there is a revenue shortfall at the end of the year, budgets will also be slashed at several other state-funded programs and services, including the California Department of Developmental Services, the state university and college system, and child care assistance.

California’s adult day health care program has already been slated for elimination by September 1.

– by Deane Beebe