Thursday, July 16, 2009

IHSS Worker Pay to Remain at Levels Prior to July 1!

Federal District Court Judge Wilken Orders Department of Health Care Services To Comply With Her Original June 26th Ruling And Notify Counties That IHSS Worker Wages Will Not Be Reduced And Workers Will Be Paid the Same Amount As They Did Before July 1, 2009 - Impact On Fresno County IHSS Worker Wage Cut Depends On What Reasons County Submitted Request To State

SACRAMENTO, CALIF (CDCAN) [Updated 07/14/09 08:05 AM (Pacific Time) - In a stinging rebuke. US District Court Judge Claudia Wilken yesterday (July 13) ordered the Schwarzenegger Administration to notify counties by the close of business today (July 14) that the In-Home Supportive Services (IHSS) worker wages paid in each county shall remain the same as they were before July 1, 2009. [see CDCAN website at for copy of the 6 page new order].

Attorneys for SEIU headed by Stacey M. Layton, filed a motion – or a request – to the same Judge, saying that the State was not in compliance with the Court order . The attorneys requested that the Court hold the State in contempt and issue fines and order the State to comply immediately.

The order came as a result of a lawsuit filed by SEIU (Service Employees International Union) against the Governor and other state officials from implementing the reduction in the State funding (participation) toward IHSS worker wages, which are also matched by federal and county funding, to $9.50 per hour plus 60 cents for health benefits. That reduction, which was part of the 2009-2010 State Budget passed in February (four months early), was set to take effect July 1, 2009. The lawsuit was filed in federal district court in Oakland with a hearing on June 25th and Judge Wilken issued a ruling on June 26th – the day of the hearing that blocked the reduction from taking place in a major victory for IHSS workers and persons with disabilities, the blind and seniors who receive services under IHSS.

The Judge in her order did not find the State in contempt but that “their manner of compliance has not carried out the intent” of her original June 26th order, saying that “Apparently, the Court’s order was not sufficiently specific.”

Judge Wilken wrote in her July 13th order that “the Court scheduled the hearing on the preliminary injunction for June 25th so that before July 1 all those concerned – the State, the counties, the providers, and the elderly and disabled consumers – would know what rate would be applied to hours worked on or after July 1st. At the hearing, the Court issued its order from the bench, with a written order following on June 26, so that all those concerned would know that, as of July 1, the rate could not be reduced based on Section 12306.1(d)(6) [California Welfare and Institutions Code].”

In a strong rebuke to the Schwarzenegger Administration officials, Wilken wrote that “the Court declined to be more specific in ordering the State exactly how to achieve this result, not because the Court did not intend that the result obtain, but only in deference to the State’s presumed ability to determine how best to accomplish the result without unintended consequences.”

The Judge’s new ruling amends her previous order that she issued on June 26th that specifically orders the Department of Health Care Services – the agency that oversees the State’s Medi-Cal program, where most of the federal and state funding for the IHSS comes from, to comply immediately as follows:
Orders the Schwarzenegger Administration to immediately rescind by the close of business today (July 14th) the approvals by the Department of Health Care Services of requests made by counties for IHSS worker wage reductions which were submitted after February 20, 2009, to be effective July 1, 2009.
Orders the Department of Health Care Services to notify each county by close of business today (July 14th) that the approvals are set aside and that the IHSS wages paid in each county shall remain the same as they were before July 1, 2009. Wilken ordered that “the State shall notify each affected county of these action[s], using a method designed to ensure that the notification is received on July 14”.
Orders the Department of Health Care Services to notify these counties that it will pay 65% of the non-federal share if the pre-July 1, 2009 rate up to $12.10 for hours worked on July 1 and thereafterm “until such time as the Court’s preliminary injunction is rescinded”.
Orders the Director of the Department of Health Care Services to include in that notice to the counties a copy of the amended injunction issued by Judge Wilken yesterday (July 13), which must be sent out with the notice by the close of business today (July 14th)

The lawsuit and Judge’s ruling yesterday and her original ruling of June 26th does not impact other cuts passed in the 2009-2010 State Budget in February to In-Home Supportive Services (IHSS), though should have some influence on proposals regarding further reductions in State spending for IHSS worker wages that the Governor proposed in late May. Legislative leaders and the Governor are still meeting on trying to resolve the State’s worsening budget situation, with a budget shortfall of over $26 billion in the budget year that began July 1. Some of the proposals – not approved – would have a major impact on IHSS.

Impact on Fresno County IHSS Worker Wage Reduction
The Judge’s order yesterday and her June 26th original apparently does not impact Fresno County’s original request to reduce IHSS worker wages, which was made separate from the reduction in the 2009-2010 State Budget passed in February, if the county submitted a request to reduce worker wages not based on the 2009-2010 State Budget reduction.

The Judge wrote in a footnote to her July 13th order that “It is not clear from the papers submitted by the parties whether Fresno County submitted one Rate Change Request with a second reason for the request other than the passage of Section 12306.1(d)(6) [California Welfare and Institutions Code] or if it submitted two requests. If it submitted only one request, it must submit a separate request based on a reason other than Section 12306.1(d)(6) if it wishes to pursue a rate reduction.”

Update On Medi-Cal Optional Benefits Lawsuit
As previously reported, a different lawsuit to stop the elimination of 9 Medi-Cal “optional benefits” including adult dental, will be heard in federal district court on August 19, at 9:00 AM, at the federal courthouse in San Francisco (450 Golden Gate Avenue, Courtroom 5, 17th floor). [Note: see attached information notice from the Department of Health Care Services regarding this elimination of 9 Medi-Cal “optional benefits” that went into effect July 1, 2009. Copies are also posted on the CDCAN website at The 2 page notice is attached in three languages – English, Chinese and Spanish – see CDCAN website for these and other languages. ]

The lawsuit, filed by the Medicaid Defense Fund on behalf of persons receiving Medi-Cal services and advocacy organizations, including the Gray Panthers, the Independent Living Center of Southern California and the California Foundation for Independent Living Centers, will be heard before federal District Court Judge Phyllis J. Hamilton, an appointee of President Bill Clinton.

The hearing on this lawsuit was changed twice – originally set for August 5, then moved to August 12th and now set for August 19. The change in hearing dates is partly due to the California Attorney General, on behalf of the Schwarzenegger Administration, representing the State of California, objected to a federal magistrate hearing and deciding the case – which is asking for an immediate order to block the elimination of the Medi-Cal “optional benefits” – called optional because the federal government does not require the states to provide them.

What Medi-Cal Optional Benefits Are Eliminated?
As of July 1, 2009, Medi-Cal will no longer pay for the following “optional benefits” and services for most adults (21 years or older), with certain important exceptions (see below)
· Adult Dental services
· Speech therapy services
· Podiatric services
· Audiology services
· Chiropractic services
· Acupuncture services
· Optometric and optician services (ophthalmology, which are doctor services for a person’s eyes, will still continue to be covered)
· Psychology services (psychiatry services, and all services through county mental health programs will continued to be covered)
· Incontinence creams and washes
The Department of Health Care Services has a special hotline to answer questions regarding the elimination of these “optional benefits”. Call the Medi-Cal Beneficiary Services Line at 1-888-284-0623. This line will be available from June 10, 2009 until early September 2009.

Who Is Exempted from Elimination of These Optional Benefits?
The elimination of the 9 Medi-Cal “optional benefits” and services will NOT change for the following persons who receive services under Medi-Cal:
· Children under the age of 21; or
· Persons living in a skilled nursing facility (Level A or B; this includes subacute care facilities); or
· Pregnant women (the Department of Health Care Services say that persons who are pregnant can continue to receive pregnancy-related benefits and services. They can also receive other Medi-Cal benefits and services listed above to treat conditions that, if left untreated, might cause difficulties for the pregnancy. This includes dental exams, cleanings, and gum treatment. Dental and other benefits and services may also be available up to 60 days after the baby is born;)
· Children receiving services through the California Children’s Services (CSS) program; or
· Adults receiving services through a Program of All-Inclusive Care for the Elderly.
· Another exception – though not listed on the Department of Health Care Services notice , are persons with developmental disabilities who are eligible for regional center funded services under the Lanterman Developmental Disabilities Services Act – the nation’s only civil rights act for persons with developmental disabilities. Those persons, under current state law, could ask the regional centers to fund those services being eliminated. Funding to address that was included in the Governor’s budget revisions he made in May, and approved by the Budget Conference Committee controlled by the Democrats. However that action – like so many other budget related issues – is not final until the full Legislature passes it and the Governor signs it – something that has not yet happened.

Other Possible Exceptions
The Department of Health Care Services said that persons can still receive some or all of the Medi-Cal “optional benefits” that are eliminated, and certain dental services if a person is:
· Receiving the services through the Genetically Handicapped Persons Program; or
· Receiving the benefits through the county mental health program; or
· Receiving the benefits through the Medicare Part B program; or
· Receiving the services directly from a physician.
The Department of Health Care Services suggests that persons contact their doctor or dentist if you have any questions about these changes.

Elimination of 9 Medi-Cal Optional Benefits Part of 2009-2010 State Budget Passed In February and Proposed by Governor
The Governor proposed in January the permanent elimination of 9 of the 35 Medi-Cal “optional benefits”, effective July 1, 2009. The Legislature, controlled by Democrats, approved the proposal in February as part of the 2009-2010 State Budget that the Governor signed into law – four months early.

A “federal funds trigger” was linked to the reduction (and also reductions regarding In-Home Supportive Services worker wages cutting State participation to a maximum of $9.50 per hour plus 60 cents for health benefits, a 2.3% cut to SSI/SSP grants and a 4% cut to CalWORKS grants, all effective July 1, 2009)

If the “federal funds trigger” was pulled then the cuts would not happen. But pulling that trigger required the Governor’s Department of Finance Director – Mike Genest, and the State Treasurer – Bill Lockyer – to determine if California would have at least $10 billion in federal funds by June 30, 2010 that could be used or made available for use to replace State general fund spending.

After a public hearing, both Lockyer – a Democrat – and Genest, issued their determination on March 27, that found the State would fall about $2 billion short of the required $10 billion – and as a result, the “federal funds trigger” would not be pulled and the cuts – including the elimination of the 9 Medi-Cal optional benefits – would happen.
Sidewalk Demonstration Planned August 19
A sidewalk demonstration in support of the lawsuit and against further budget cuts impacting children and adults with disabilities, mental health needs, seniors, persons with traumatic brain and other injuries, persons with MS, Alzheimer’s and other disorders, low income families and organizations and workers who provide supports and services. CDCAN will be issuing a more detailed Action Alert and information on the demonstration, working with the San Francisco Gray Panthers and other groups.

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1 comment:

warrior scout said...

this is a stellar development....