IHSS Earthquake: Seniors fight for In-Home Supportive Services

‘Arnold, Gavin, it’s not fair! Do not cut our home care!’

by Carol Harvey

IHSS-Earthquake-Geraldine-Holloway-with-mic-intro’d-by-Cathy-Spensely-dir.-Fam-Svcs-Agency-Bruce-Allison-sits-with-sign-102209-SF-City-Hall, IHSS Earthquake: Seniors fight for In-Home Supportive Services, Local News & Views On Thursday, Oct. 22, the noise pitched and rolled as the crowd cheered and stomped on the sunny San Francisco City Hall steps in a budget cut “Earthquake Shout-Out to the Schwarzenegger Administration.”

Such high energy was surprising from 200 low income elders, disabled San Franciscans, people with mental health needs, In-Home Supportive Service workers, advocacy groups and families. A gentleman and his wife protesting loss of their in-home caregiver escaped inside City Hall from dangerously hot sun.

Earthquake co-emcee James Chionsini, referring to May’s Silver Tsunami event, remarked, “Earthquakes usually come before tsunamis, but in this budget climate, our sociopolitical fortunes seem be going in reverse.” He meant new legislative budget cuts leading to loss of life-supportive services to seniors and people with disabilities.

Jessica Rothaar, California Health Access, challenged the wealthiest one percent – corporate CEOs – to pay their share to resolve this $8-$12 billion economic crisis. “Middle class and low income taxpayers pay too much. This fight is (also) about everybody who isn’t sick or disabled but could become so.”

Said James, “Home care providers are the backbone of community living,” ensuring seniors stay home and out of confining institutions.

Cathy Spensely, director of the Family Services Agency, introduced Geraldine Holloway whose worker cleans and helps her downstairs, enabling her to be active in the community, at a senior center daily. “He’s important to me.”

Vicky Westlin, a strong speaker, said, “I wanted the caregivers in the audience to know how much they are appreciated, how desperately we need them. Without them, we would sit in our apartments and die.” Inability to perform daily living activities can lead to depression, illness and death.

For years, Vicky has fought debilitating arthritic stiffness. “It doesn’t show. But it hurts to go anywhere.” Both arms cramp. “In two years, I won’t be able to use them.”

Without Vicky’s caretaker, Alice, cooking, washing dishes, cleaning, doing laundry, even bathing, “I would probably live in filth.”

Said Vicky, “It’s scary being vulnerable to politicians for the money you live on. These people don’t have a clue what it’s like to live like this.”

Chionsini cried, “We won a temporary victory yesterday!”

Judge Wilken’s preliminary injunction

In Oakland, U.S. District Judge Claudia Wilken’s Monday, Oct. 19, preliminary injunction blocked the Schwarzenegger budget’s In-Home Supportive Services cuts to take place Nov. 1.

Eve Cervantez, partner at Altshuler Berzon LLP, San Francisco, verified that Judge Wilken’s ruling found the plaintiffs’ case met preliminary injunction requirements:

  1. At trial, plaintiffs would likely show that IHSS cutbacks reduced In-Home Supportive Services hours or eliminated clients from the program;
  2. That would pose a substantial threat of irreparable damage, loss of the “irreplaceable ability of people to remain safely in their homes;”
  3. Two federal laws would probably be violated: The Americans with Disabilities Act because the cuts are discriminatory against people with mental, developmental disabilities and brain injury; and two portions of the federal Medicaid Act – the comparability requirement: “People with similar medical needs must be treated similarly,” and the reasonable standards requirement: “There must be some reasonable basis for setting standards for what services people can get.”

Ms. Cervantez said that because a “functional index score” determined the number of hours’ help a client needed, not his/her eligibility, “The judge found the way these specific cuts were done would violate both requirements.” Using numbers assigned to people for another purpose was “irrational and arbitrary.”

“Under the Medicaid Act, you can’t just use things that don’t make sense to arbitrarily deny medical services to some people and not others.”

Said Cervantez, “Judge Wilken had a short time to consider a complex case. It was an emergency (with) dire consequences for people (who could) be injured, hurt, left homeless or end up in psychiatric hospitals or nursing homes.”

Marie Jobling of the Community Living Campaign, co-emcee of the Earthquake event, said Judge Wilken’s injunction temporarily alleviated 130,000 Californians’ most serious concern.

The Nov. 1 cuts would have cost almost 6,000 IHSS consumers some services, another 2,000, all services and the loss of over 1,000 workers’ jobs. A hearing will be held, scrutinizing “how much harm the state created when they moved forward so quickly trying to do this.”

“We had this mechanism in place (with the county’s support), that, if the letters went out this week, we trained people all over the city to help file 4,000 individual appeals for people within this 10-day window, (so) they could keep their benefits and the worker would keep coming. It was a push to keep people on the job and at home.”

Attorney Cervantez assures Judge Wilken’s order is in effect until there is a “final decision where she looks at the legal claims and makes sure we’re right.”

A Jan. 8 “status conference” is planned to set a schedule for the case. “In the next few days, affected people will receive a notice the judge ordered the state to mail, saying, ‘Don’t worry. There are no cuts right now.’ On Oct. 28, the state filed an appeal with no trial date set.”

Donna Willmott, consumer advocate at Planning for Elders, exposed the governor’s and legislature’s agenda: “It seems they’re using the budget to implement social policy, to dismantle this program.”

Steve Shane, deputy director of the In-Home Supportive Services Consortium, agreed. After the judge’s decision, Consortium Director Margaret Baran announced it to cheers. “However, we speculated that the blatantly arbitrary ‘functional index scoring’ signaled the legislators were using this method to go to DEFCON 4 to just whack the whole program.”

IHSS state share of cost assistance elimination

Marie Jobling warned, “That victory isn’t the only issue. Several other things still need to be fought.” First, “Helping people access Medi-Cal.”

Claiming a “programmatic change” in eligibility rules, without notification the state dropped this assistance program, which paid some of the home care share of cost. About 400 San Franciscans, who hadn’t realized they were signed on, found themselves responsible for co-pays estimated between $15 to $500 out-of-pocket.

Stated Jobling, “Many San Franciscans can’t afford to pay into Medi-Cal because it doesn’t take into account rent, prescription drugs (or) transportation. To get Medi-Cal, you have to figure how to pay $200 or $300 dollars out of your paltry income.”

Chionsini, who works with Planning for Elders in the Central City, clarified the ongoing appeal. The state claimed a lawsuit reinstating the program wasn’t appealable, then didn’t notify recipients it actually was.

$8,655,000 cuts to Public Authority Administration

Schwarzenegger slashed by $8,655,000 the county Public Authority Administrations’ statewide operating budgets. The San Francisco County Public Authority is an 18,000 home care worker registry designed to allow clients to choose a safe, familiar worker, like a relative, providing personal care.

Despite the client’s preference for a non-stranger, the Public Authority cannot pay workers with bad fingerprints or criminal backgrounds.

Said San Francisco Public Authority’s Sergio Alunan: “We know how the cuts devastate an individual with a disability. Some of our clients (will) have to go to an institution.”

Two contesting lawsuits were filed in late August and September, one by Senate President Pro Tem Darrell Steinberg, D-Sacramento. No action has yet been reported.

Care provider enrollment requires fingerprinting, background checks

During a Sacramento budget hearing on Wednesday, Oct. 28, administration officials announced that the state will proceed with the Nov. 1 implementation of mandatory background checks and fingerprinting for new and existing IHSS workers.

Letters to providers and clients directed them to be fingerprinted at Human Services offices. Current home care providers seeking new clients must undergo fingerprinting and a background check before they can switch.

California DSS changed software so new providers cannot be hired or processed unless data input staff check off computer screen boxes indicating the provider has completed an orientation, fingerprinting and background check and has completed and signed a provider enrollment form in the their presence.

ACORN-style fraud prevention is the ostensible purpose of background checks and fingerprinting, with no specific fraud type identified.

James Chionsini notes three IHSS fraud types: 1) Receiving services to which you are not entitled; 2) receiving services under an assumed name; or 3) getting paid for services not provided.

He questions this fraud prevention program, asking:

  • Which fraud category will it address?
  • How will background checking and fingerprinting address fraud?
  • What is the cost versus the savings?

According to Chionsini, county offices have no idea how they will implement the “degrading, unnecessary” fingerprinting, nor does the state tell counties what to do with collected fingerprints.

The cumbersome process prohibits clients from getting a provider quickly or the same choices they had.

Chionsini and Donna Willmott agree. Legislative “scare tactics” are meant to discourage and intimidate caregivers and recipients from accessing services. “Fingerprinting requirements have a chilling effect, especially in immigrant communities (among) undocumented workers.”

IHSS recipient fingerprinting required

Notices for the new fingerprinting requirement for recipients went out last week. Parties are considering filing suit to block it.

Marie Jobling observes, if clients want home care, “Because they are low income and needy, they must be fingerprinted like criminals – not just once. The state mandates that, unless both worker and consumer place their fingerprint on every single time sheet, they cannot be paid.”

Many aging seniors lose fingerprints. Some cancer drugs melt fingerprints away.

Cuts to IHSS workers’ wages and health coverage

After IHSS workers – affiliated with SEIU and United Domestic Workers of America – filed a federal lawsuit, Judge Claudia Wilken’s preliminary injunction stopped a major reduction emanating from the February legislature- and governor-approved 2009-2010 state budget in-state contributions toward IHSS worker wages (counties and federal government fill in the rest) to $9.50 per hour maximum plus a 60-cent maximum for health benefits. The state is appealing the ruling to the U.S. Circuit Court of Appeals.

Said Rebecca Malberg, representative for United Health Care Workers, “We are thrilled the federal courts agreed that the legislature and governor were wrong to try to cut the wages (and) hours.

“You can’t balance the budget off the backs of people who take care of people who need care.”

Marie Jobling noted: “This workforce has been down a long time.” They unionized for fair treatment and wages; “$4.25 an hour is not fair. We can’t support our families. We have to keep changing jobs. It’s bad for clients.”

Unions have worked to raise wages statewide. They’re still low – about $9.95 with health benefits, no paid vacation or sick leave. They lack “what most workers consider normal.”

Medi-Cal optional benefits eliminated: hearing aides, dentures, glasses, podiatry etc.

As of July 1, 2009, Medi-Cal no longer pays for “optional benefits” and services for most adults, 21 years and older, in the Medi-Cal program who are living in the community but not in nursing or health facilities.

In August 2008, the San Francisco Gray Panthers, represented by the Medicaid Defense Fund, filed a federal lawsuit against Gov. Arnold Schwarzenegger for individual Medi-Cal recipients, people with disabilities and low income seniors impacted by budget reductions.

James Chionsini boomed to the crowd, “In Sacramento, they don’t think people need dentures, eyeglasses, podiatry, wheelchairs, hearing aides. Let’s give a solidarity shout with them over at the courthouse!”

That same moment, blocks from the Earthquake Rally, the U.S. 9th Circuit Court of Appeals denied a motion by attorneys representing Medi-Cal recipients and advocacy organizations to require the Schwarzenegger administration to stop the budget reduction that eliminated, as of July 1, 2009, nine Medi-Cal “optional” benefits for adults, including adult dental.

Whatever money Social Security doesn’t provide, the state kicks in SSI to make up the difference. Said Vicky Westlin, “They keep dropping the amount, thanks to the cigar-chewing idiot.”

“They’re nickle and diming people to death,” said James Chionsini.

Devaluing older people

Marie Jobling feels the legislators “don’t care about older people and people with disabilities. They have contributed all they can; they don’t have anything to give back. So, no appreciation, no respect for people who worked hard their whole life, tried to do the right things and, in their older years or when they develop a disability, are left high and dry.”

Donna Willmott, whose sister with cerebral palsy has for 30-plus years been an editor, feels marginalizing people with disabilities is a loss, not only to them, but to the culture for the great gifts they offer.

“The social policies we establish today determine the world we want to live in, the future we want for our children and grandchildren. These decisions are not just about this moment. They embody the values of the society we live in, what we care about, whose lives have value. That’s what a state budget and these court decisions tell us.”

Carol Harvey is a San Francisco writer whose work is published by many Bay Area periodicals. Email her at carolharveysf@yahoo.com.