Miller v. Woods
| Decision Date | 21 October 1983 |
| Citation | 196 Cal.Rptr. 69,148 Cal.App.3d 862 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Harold MILLER, et al., Plaintiffs, v. Marion J. WOODS, as Director, Respondent. COMMUNITY SERVICES CENTER FOR the DISABLED, et al., Plaintiffs and Appellants, v. Marion J. WOODS, as Director, et al., Defendants and Respondents. Civ. 28347, Civ. 28164. |
Colleen Fahey Fearn, Legal Aid Society of San Diego, Inc., Charles Wolfinger, Geis & Wolfinger, San Diego, Marilyn Holle, Dan Brzovic, Bet Tzedek Legal Services, Elena H. Ackel, Los Angeles, and Legal Aid Foundation of Los Angeles for plaintiffs and appellants.
George Deukmejian, Atty. Gen., Willard A. Shank, Chief Asst. Atty. Gen., Thomas E. Warriner, Asst. Atty. Gen., and John W. Spittler, Deputy Atty. Gen., for defendants and respondents.
Plaintiffs 1 challenge the validity of a regulation (Department of Social Services Manual of Policies and Procedures § 30-463.233c) (MPP) issued by the Director, State Department of Social Services (Department), which denies payment to "housemates" for "protective supervision" services rendered to totally disabled persons. 2 This result is compelled by the Department's regulation which in effect volunteers the service of live-in housemates with a few, narrowly limited, exceptions.
The challenged regulation provides:
"For service authorization purposes, no need for protective supervision exists when a housemate is in the home, unless the housemate who is present falls in one or more of categories 1, 2, or 3 listed in .235 b below, or if the housemate is the landlord or tenant of the recipient or if the housemate is a parent under the circumstances specified in .245." (MPP § 30-463.233c.)
The trial court held this regulation invalid but granted the relief sought only to the individual plaintiffs who sought writs of mandate. Despite finding the regulation invalid the trial court denied any relief to the six organizations' motions for class certification and for summary judgment. The trial court reasoned the Department would appeal and thereby obtain an appellate court decision which, if adverse, would be voluntarily extended by the Department to the entire class.
In 1973 the Legislature enacted the In-Home Supportive Services (IHSS) program to enable aged, blind or disabled poor to avoid institutionalization by remaining in their homes with proper supportive services. (Welf. & Inst.Code, § 12300, and as amended, Stats.1981, ch. 69, § 16.) 3 To be eligible for IHSS services, a person must be poor and either over 62, blind or disabled, and unable to perform the routine daily tasks of caring for himself. (§ 12500.) IHSS programs must enable the recipient to remain in their own home or abode. (§ 12300.)
The Department and its director are responsible for administering the IHSS program in compliance with state and federal laws. 4 (§§ 10600, 10553, 12301, 12301.1, 12302.) The Department promulgates regulations to implement the statutes (§§ 10553(c), 10604(b), 12301.1) while the county welfare departments administer the program under the state's general supervision. The county departments process applications for IHSS assistance (MPP §§ 30-009, 30-455, 30-459), determine the individual's needs and authorize services. (MPP ch. 30-463.1.) The county either obtains and pays the provider or pays the recipient who hires one. (MPP §§ 30-464, 30-467.) Determinations are reviewable at a fair hearing before the State Department at the recipient's or provider's request. (§ 10950.)
The Legislature authorized a broad range of support services to eligible persons. Section 12300 provides:
"[D]omestic services and services related to domestic services, heavy cleaning, non-medical personal services, accompaniment by a provider when needed during necessary travel to health related appointments or to alternative resource sites and other essential transportation as determined by the director, yard hazard abatement, protective supervision, teaching and demonstration directed at reducing the need for other supportive services, paramedical services, and other services as determined by the director which make it possible for the recipient to live in comfort and safety under an independent living arrangement." (Italics added.)
The type and amount of service are determined on an individual basis. (MPP § 30-475.3.) The total cost for services authorized to any individual is limited by a monthly maximum benefit. For severely impaired persons, the sum is $838 (§ 12304); $581 for others (§ 12303.5.). 5
Until 1981 recipients were entitled to all services authorized by section 12300. However, the 1981 amendments provided (for the first time) a funding cap on state appropriations furnished in order to obtain federal funding for the program. 6 (§ 12306, as amended, Stats.1981, ch. 69, § 21.) The amendment provided if state appropriations were insufficient to cover all authorized services, specific types of services for particular groups of otherwise eligible persons should be cut before others. (§ 12301, as amended, Stats.1981, ch. 69, § 17.)
Recipients needing more than 20 hours per week of IHSS services have an absolute right to choose their providers. (§ 12304, subd. (b).) All other recipients are entitled to have their preferences followed by the county welfare department if possible. (§ 12304.1.)
"Protective supervision" services authorized by section 12300 are "for monitoring the behavior of nonself-directing, confused, mentally impaired, or mentally ill persons ...." (MPP § 30-457.71.) Such services consist "of observing recipient behavior in order to safeguard the recipient against injury, hazard, or accident." (MPP § 30-457.7.) To be eligible for such services, an individual must show "that twenty-four hour need exists ... and that the recipient can live at home safely if protective supervision is provided." (MPP § 30-457.721.)
Some recipients are old, suffering degenerative diseases. Others are young but retarded, epileptic, blind, brain damaged or schizophrenic. The recipients cannot protect themselves from injury. Some are self-destructive. For example, one autistic, blind and brain-damaged child lapses "into seizures and temper tantrums ... venting his frustrations by banging his head against a wall." Others cannot control normal but potentially hazardous activities such as cooking or smoking a cigarette. Each person denied IHSS assistance solely under MPP § 30-463.233c concededly needs the services by the terms of MPP §§ 30-457.7 and 30-457.71.
The "providers" (termed a "housemate" in the glossary of the regulations (MPP § 30-453)) who live with such totally disabled person are usually relatives. None is legally responsible to support the recipient. These relatives often offer to provide care "not voluntarily" but because they cannot find anyone else who will do it as well.
The Department stopped payments to housemates for IHSS in April 1979 7 if the challenged MPP § 30-463.233c conditions and exceptions were not satisfied. Under the regulation an otherwise eligible recipient, who in fact needs protective supervision, is deemed not legally in need if he has a housemate at home capable of providing supervision. The regulation exempts five groups of housemates: (1) another IHSS recipient unable to provide protective supervision; (2) a person physically or mentally unable to provide supervision; (3) a child under 14 (MPP § 30-463.235(b)); (4) a landlord or tenant of the recipient; or (5) a parent who left full-time employment, or cannot obtain it, to care for his minor child and cannot find anyone else to provide supervision. (MPP ch. 30-463.245.)
The state and county welfare departments have enforced MPP § 30-463.233c by terminating or denying IHSS assistance for protective supervision to thousands of totally disabled persons. Enforcement of the regulation has exacerbated the hardship of providing care at minimal pay. Some providers have given up jobs to provide care. This reduction in income--by denying payment for protective supervision--has placed even greater stress on the housemate's ability to care for the recipient.
The regulation poses Hobson's dilemma. Recipients needing 24-hour protective supervision--and other services--are more likely to receive better continuous care from relatives living with them whose care is more than contractual. This regulation forces housemate providers to render services for less compensation than other providers by denying them payment for protective supervision. These relatives, unless they have independent funds, must subsist on the reduced IHSS grant. If the housemate is required to work outside the home as a result of the reduced grant, the aged or disabled relative may have to be institutionalized. 8
Plaintiffs in both lawsuits charge the regulation conflicts with state statutory provisions After discovery was completed plaintiffs filed motions for class certification and for summary judgment on all four causes of action. The Department opposed the summary judgment on the grounds the regulation was valid. The Department also opposed class certification contending the organizations were not adequate representatives. Finally, the Department sought the appointment of someone to represent persons whose grants might be reduced as a result of the lawsuit.
governing the IHSS program, with section 504 of the Federal Rehabilitation Act [29 U.S.C.A. § 794] and with the equal protection guarantees of the state and federal Constitutions. Plaintiffs framed their complaint in four causes of action, seeking different remedies but all based upon the invalidity of the regulation. The first three causes of action sought relief for any person harmed by its enforcement. The first cause of action, by the organizations, was for a writ of mandate under Code of Civil Procedure...
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