V.L. v. Wagner
| Decision Date | 23 October 2009 |
| Docket Number | No. C 09-04668 CW.,C 09-04668 CW. |
| Citation | 669 F.Supp.2d 1106 |
| Court | U.S. District Court — Northern District of California |
| Parties | V.L., et al., Plaintiffs, v. John A. WAGNER, Director of the California Department of Social Services; David Maxwell-Jolly, Director of the California Department of Health Care Services; California Department of Health Care Services; California Department of Social Services, Defendants. |
Anna Margaret Rich, Dara Lynn Schur, Frederick Philip Nisen, Jung Pham, Disability Rights California Bay Area Regional Office, Oakland, CA, Charles Hobson Wolfinger, Attorney at Law, San Diego, CA, Deborah Alyse Dorfman, Marilyn Lee Holle, Melinda Ruth Bird, Disability Rights California, Paula D. Pearlman, Shawna L. Parks, Los Angeles, CA, Sujatha Jagadeesh Branch, Disability Rights California Sacramento Regional Office, Sacramento, CA, Eve Hedy Cervantez, Peder J. Thoreen, Stacey M. Leyton, Stephen P. Berzon, Altshuler Berzon LLP, San Francisco, CA, for Plaintiffs.
ORDER GRANTING PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION
Plaintiffs are disabled and elderly Californians who need in-home assistance with one or more of the activities of daily living, such as eating, bathing, toileting or taking medication, in order to live safely at home without risk of serious injury or harm. Plaintiffs seek to prevent the State from applying a change in the law to reduce or terminate these services to over 130,000 people who receive them from the state In-Home Supportive Services (IHSS) program, by changing the eligibility criteria of the program in a way that, the Court concludes, likely violates federal law. This change would reduce or terminate services to recipients based on numerical rankings and a complicated mathematical formula devised years ago, which was not designed, and has never been used, to measure an individual's need for care.
Plaintiffs provide ample evidence that they and others like them will be irreparably harmed if they lose their in-home help. They will be unable to care for themselves, suffer injuries, and be relegated to emergency rooms, hospitals, and other institutions. Although the State counters that its budget crisis requires such cuts, and the Court weighs this in the balance, the increase in more expensive hospitalization and institutionalization of needy disabled and elderly people will likely outweigh the short-term savings. And in any event, the human suffering that will be caused by the change in the law justifies the Court's preliminary injunction against the implementation of this change.
Under the 1965 federal Medicaid Act, the federal government financially assists participating states that provide medical services to eligible beneficiaries. California participates in Medicaid through the Medi-Cal Program. In 1973, California established In-Home Supportive Services (IHSS) as part of its Medi-Cal program to provide assistance with the tasks of daily living to low-income elderly and disabled persons. IHSS is funded with a combination of state, county and federal Medicaid monies. Id. § 12306. Over 360,000 IHSS caregivers serve over 440,000 individuals in California. Sixty percent of IHSS recipients are senior citizens.
Those who qualify for IHSS are persons "who are unable to perform the services themselves and who cannot safely remain in their homes or abodes of their own choosing unless these services are provided." Welf. & Inst.Code § 12300(a). The California Department of Social Services (CDSS) Manual of Policies and Procedures (MPP) similarly directs that IHSS "provides assistance to those eligible aged, blind and disabled individuals who are unable to remain safely in their own homes without this assistance." MPP § 30-700.1.1 The MPP also states that a particular service will not be authorized unless the social worker evaluating the individual "has determined that the recipient would not be able to remain safely in his/her own home without IHSS" and "performance of the service by the recipient would constitute such a threat to his/her health/safety that he/she would be unable to remain in his/her own home." Id. § 30-761.13-14.
In 1988, fifteen years after the IHSS program was created, the State legislature passed a law requiring the CDSS to develop a uniform needs assessment tool "to assure that in-home supportive services are delivered in all counties in a uniform manner." Cal. Welf. & Inst.Code § 12309(a).
The CDSS developed and implemented such a tool, calling it the Uniformity Assessment System. The System defined ranks of one to five for social workers to use in use in rating elderly or disabled individuals' functional abilities in each of fourteen areas:2 housework; laundry; shopping and errands; meal preparation and clean up; mobility inside the residence; bathing and grooming; dressing; bowel, bladder and menstrual; transfer from one position to another; eating; respiration; memory; orientation; and judgment. The ranks are defined as follows:
Rank one. A recipient's functioning shall be classified as rank one if his or her functioning is independent, and he or she is able to perform the function without human assistance, although the recipient may have difficulty in performing the function, but the completion of the function, with or without a device or mobility aid, poses no substantial risk to his or her safety.
Rank two. A recipient's functioning shall be classified as rank two if he or she is able to perform a function, but needs verbal assistance, such as reminding, guidance, or encouragement.
Rank three. A recipient's functioning shall be classified as rank three if he or she can perform the function with some human assistance, including, but not limited to, direct physical assistance from a provider.
Rank four. A recipient's functioning shall be classified as rank four if he or she can perform a function, but only with substantial human assistance.
Rank five. A recipient's functioning shall be classified as rank five if he or she cannot perform the function, with or without human assistance.
Id. § 12309(d).
Social workers annually re-assess each recipient's rank in the fourteen areas on an individualized basis. MPP § 30-761.1. These social workers are specifically trained to determine a recipient's level of functional ability. Since 2005, the State has spent $10 million providing eight days of training to over 16,000 social workers who conduct IHSS assessments.
However, the ranks have never before been used to determine IHSS eligibility. Rather, as noted above, social workers were required to find a person eligible for services if he or she "would not be able to remain safely in his/her own home without IHSS." Id.; see also Welf. & Inst.Code § 12300(a); MPP § 30-700.1. By definition, an individual given a rank of two through five in any of the functions needs some IHSS assistance to remain safely in his or her own home.
Rather, the purpose of the ranks was to help social workers determine with uniformity the number of hours of a particular service elderly and disabled individuals needed. In the MPP, time guidelines are provided for each rank for some tasks.
As another part of the Uniformity Assessment System, the State created the Functional Index (FI) Score in 1988. Each recipient is given an overall Functional Index Score between 1.00 and 5.00, which is calculated based on a weighted average of eleven of the recipient's fourteen ranks of functional ability.3 The mental tasks (i.e., memory, orientation and judgment) are not counted in this calculation. The State calculated the weights by using the following method: first, the State computed the county-wide average number of hours per week of IHSS provided for each task for the people who received help with that task; second, all the county-wide averages more than one standard deviation away from the mean were removed from the computation; third, the county-wide averages from each of the remaining counties were then averaged to get a state-wide average of hours per week for each task; fourth, the state-wide average of hours per week for each task were added together to get a state-wide number representing the average IHSS hours per week for all of the tasks; fifth, the state-wide average for each task was divided by the state-wide average for all of the tasks together. The quotient was the weight used to calculate the FI Score. In effect, then, tasks that take more time are weighted more heavily.
These weights were calculated in 1988 and have not been changed since. The weights are as follows:
Function Weight
Housework .038
Laundry .037
Shopping and Errands .040
Meal Preparation and Clean Up .222
Mobility Inside .079
Bathing and Grooming .095
Dressing .057
Bowel, Bladder and Menstrual .129
Transfer .094
Eating .127
Respiration .082
An individual's FI Score is calculated using these weights as follows: A one is subtracted from his or her rank for each function. Each of those numbers is multiplied by the weight assigned to the respective functions. (As noted above, the mental functioning ranks are not counted.) These products are totaled and a one is added to the sum. The result is the FI Score. In a July 1, 1989 Report to the Legislature on IHSS Uniformity, the CDSS stated, "Admittedly, the description of the application of the formula is difficult to conceptualize." Report to Legislature: IHSS Uniformity at 10.
In effect, then, a person who needs help with a greater number of different tasks, especially tasks usually that take more time perform, will have a higher score than a person who needs help with a smaller number of different tasks, irrespective of...
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