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January 20, 2012

Melinda Bird
Lead Counsel
Disability Rights California
Phone: 916-397-5459

Stacey Leyton
Lead Counsel
Altshuler Berzon LLP
Phone: 415-421-7151

Judge grants preliminary injunction, stopping IHSS across-the-board cuts from going forward

Oakland, CA – Judge Claudia Wilken yesterday issued a preliminary injunction, barring the State of California from going forward with the 20% cuts in home care hours for hundreds of thousands of seniors and people with disabilities. She had previously issued a Temporary Restraining Order on December 1, stopping the cuts until today’s hearing.

The Judge certified the plaintiffs as a class.

Melinda Bird, Disability Rights California lead counsel in the case, praised the judge's decision, saying "We are delighted that people with disabilities can continue to rely on IHSS help to remain safely in their homes. As the judge requested, we are looking forward to meeting with the state's representatives to determine if there are ways to identify IHSS consumers whose hours could be reduced without undercutting their safety."

The judge criticized the state’s plan, saying it would cause “thousands and thousands of people who really need these services to be dumped off, and only if they clawed their way back on would they regain their hours.” She asked both parties--the defendants (administration) and the plaintiffs (IHSS consumers and home care providers) to meet and discuss better alternatives to the State’s plan. Judge Wilken made it clear that she would not be satisfied with anything other than an assessment that happens before people’s services are cut. In other words, reverse the government’s current plan to first cut and only then consider the impact.

The judge found fault with several aspects of the State’s plan, questioning:

  • The complicated language in the notices the State planned to send out. Disability Rights California and co-counsel claimed that the notice violates due process as it requires a timely response from people who may find it hard to understand how to apply for restoration of IHSS hours;
  • The lack of any plan for accessible notices for people with visual impairments or in languages frequently used by IHSS consumers;
  • The state’s reliance on the counties to explain and translate the notices for consumers. With social workers often serving over 300 clients, the judge questioned if the counties could provide these services; and
  • The State’s continued reliance on the assessment tool that the court previously ruled inadequate: the Functional Rankings and Index. She asked if the defendants and plaintiffs could discuss several issues, including if and how the State could identify IHSS consumers whose hours could safely be pared back without putting them at risk of institutionalization.

See details about this case, David Oster et al. v. Lightbourne (formerly V.L. v. Wagner):