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David Oster, et al v. Will Lightbourne

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


March 2, 2012

DAVID OSTER, ET AL., PLAINTIFFS,
v.
WILL LIGHTBOURNE, DIRECTOR OF THE CALIFORNIA DEPARTMENT OF SOCIAL SERVICES; TOBY DOUGLAS, DIRECTOR OF THE CALIFORNIA DEPARTMENT OF HEALTH CARE SERVICES; CALIFORNIA DEPARTMENT OF HEALTH CARE SERVICES; AND CALIFORNIA DEPARTMENT OF SOCIAL SERVICES,
DEFENDANTS.

The opinion of the court was delivered by: Claudia Wilken United States District Judge

PRELIMINARY INJUNCTION

United States District Court For the Northern District of Californi

order below, Defendants and their successors, agents, officers, IT IS HEREBY ORDERED that, except in accordance with the servants, employees, attorneys and representatives and all persons 20 acting in concert or participating with them are enjoined from 21 implementing the provisions of SB 73 that enacted section 12301.07 22 of the California Welfare and Institutions Code, which imposes a 23 twenty percent reduction in authorized hours of In-Home Support 24 19 Services for IHSS recipients not exempt or pre-approved for 25 26 exceptions to the reductions, and establishes a Supplemental Care application process available to IHSS recipients to seek the 28 restoration of reduced hours.

1 2 twenty percent, or any other number, only after conducting a needs

Defendants may reduce IHSS recipients' service hours by

reassessment to determine the number of IHSS service hours that 4 are necessary to enable the recipient to remain safely at home. A 5 reduction of IHSS hours shall not be based on functional ranks 6 alone, or on Functional Index Scores. The State shall bear the 7 cost of counties' reassessment efforts to the extent those 8 activities go beyond existing legal requirements for 9 10 reassessments.

IHSS recipients who qualify, and are on waiting lists, for State Home and Community Based Services Waiver programs shall be 13 exempt from the reductions, like those recipients who are 14 currently enrolled in the programs.

Based on the CDSS's representation that all IHSS recipients 16 who receive Early Periodic Screening Diagnosis and Treatment 17 (EPSDT) services will be pre-approved for an exception to the 18 19 reduction in services, the reduction shall not be applied to these recipients. 21 Twenty-one days prior to instructing the counties to conduct 20 22 any reassessments, or making changes to the Case Management, 23 Information and Payrolling System (CMIPS) to implement such 24 reassessments, Defendants shall serve and file a copy of their 25 plan for conducting reassessments. The plan shall include the 26 27 notice or notices Defendants intend to send to IHSS recipients.

1 2 notice of the right to request a state hearing, shall be written All notices to IHSS recipients regarding SB 73, including any in a manner comprehensible to an individual who reads at a fifth 4 grade level. Defendants shall verify that the notices are 5 comprehensible to fifth grade level readers by considering 6 guidance from official resources, such as those cited by 7 Plaintiffs' expert, regarding readability and by consulting with a 8 qualified expert to review the notices. 9 10 Notice to IHSS recipients shall not include misleading or 11 confusing statements, such as those addressed in this Court's order granting the preliminary injunction. 13 If an IHSS recipient's service hours are to be reduced, 12 14 notice to the recipient shall explain the grounds for the hours 15 reduction. If functional ranks were used, the notice must 16 identify the recipient's functional ranks and describe how the 17 ranks affected the reduction of hours. 18 19 Defendants shall provide the notices in English, Spanish, Chinese, Hmong, Armenian, Russian and Vietnamese, and shall send 21 each notice in the language appropriate to the IHSS recipient. 22 Defendants shall identify a telephone number through which an IHSS 23 recipient who is not literate in one of the above languages, or 24 who has cognitive or visual impairments, can seek a reading and/or 25 translation of the content of the notice. The notices shall 26 27 inform IHSS recipients that they may call that number for that 20 purpose.

1 2 injunction, Defendants shall, to the extent that they have not To ensure that all relevant parties are aware of the Court's already done so in accordance with the December 1, 2011 Temporary 4 Restraining Order, rescind any directions or notices issued to any 5 person or entity for the reduction of IHSS benefits in accordance 6 with SB 73, and shall notify all persons and entities that have 7 received such directions or notices that IHSS benefits will not be 8 reduced in the manner provided for in SB 73 and the ACL. 9 10 Defendants must mail this notice within four days of the date of 11 this order.

Defendants shall post a copy of this preliminary injunction, 13 with an explanation of its effects on IHSS services, conspicuously 14 on the California Department of Social Services website within 15 four days of the date of this order. 16

IT IS SO ORDERED.

20120302

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