Behind the decision to accept cuts to in-home support services

Judges Bea (left) and O'Scannlain.

For the last four years, advocates for those with disabilities have successfully fought to stave off the 20 percent cut in In-Home Support Services that then-Gov. Arnold Schwarzenegger had proposed to help balance California's budget, each year winning legal injunctions preventing the cuts while the case wound it way through the federal court system.

Their main argument is that such deep cuts in these vital services would discriminate against disabled or elderly Californians by forcing them into nursing homes rather than allowing them to receive services at home, which they contended was a violation of the Americans with Disabilities Act (I discuss this and other systemic devaluing of caregiving in last week's Guardian).

The Ninth Circuit of Appeals was set to hear the California case (Oster v. Lightbourne) on March 19, and the judges in this famously liberal San Francisco-based court had just ruled against Washington state's effort to make similar cuts (MR v. Dreyfus) just over a year ago. But then, on the eve of that hearing, proponents in the case announced a settlement that will result in an 8 percent across-the-board to IHHS services (allowing a 3.6 percent cut made by Gov. Jerry Brown now and another 4.4 percent cut to go into effect July 1).

While disabilities rights groups and other opponents of the IHHS cuts issued public statements that put a happy face on the settlement, emphasizing that it had avoided much deeper cuts, many advocates privately grumbled about accepting still-deep cuts to this popular and important program. After all, these cuts will hurt the families of those with disabilities (it is often relatives who are paid as caregivers by the program) and likely result in greater long-term costs from nursing home care and more emergency room visits.

So why did they settle? Sources close to the case who don't want to be identified say a big factor was that two of the three judges assigned to the case – Carlos Bea and Diarmuid O'Scannlain – are the most conservative on the Ninth Circuit bench and seemed likely to rule against the disability rights community. In other words, those with disabilities drew bad cards.

Bea was appointed to the Ninth Circuit in 2003 by then-President George W. Bush after serving more than 20 years as a San Francisco Superior Court Judge (appointed in 1990 by another fellow Republican, then-Gov. George Deukmejian), where he received poor marks from local attorneys, who said he was biased in favor of Big Business.

O'Scannlain was a founding member of the right-wing Young Americans for Freedom back in 1960, later serving as a tax attorney for Standard Oil. He was in private law practice and serving as chairman of the Oregon Republican Party in 1986 when then-President Ronald Reagan – whose presidential campaigns he had worked on – suddenly appointed him to the Ninth Circuit bench.

And if their histories and ideological leanings weren't enough to tip the balance in favor of settling, there's the fact that it was Bea who wrote a strong dissenting opinion in the MR v. Dreyfus case, dismissing the disability rights arguments completely.

He wrote: “Mind you this case does not involve the provision of certain social services to one group of disabled – those in nursing homes – but not to another group – the disabled residing at their own homes. No, the panel majority's decision proceeds on the premise that the very reduction of social services currently provided the at-home disabled will risk their going to nursing home, and that such reduction therefore 'discriminates' against the at-home disabled, although not in favor of the disabled in nursing homes, or anyone else. But virtually everything the government does involves discrimination; it is in the nature of laws that they treat some people differently from others. This is not generally impermissible discrimination. Most government spending affects some groups more than others, but that doesn't mean that the result in impermissible discrimination.”

He then rues the fact that “since the decision interprets and applies the ADA, it constitutes binding precedent in our nine Western states, with 20 percent of the nation's population,” calling it a flawed decision that violates other court precedents with its “strained interpretation of the ADA.” Then, Bea goes on at length about how the state voluntarily and generously provided these in-homes services and says it should be allowed to suddenly withdraw them as well.

“To the contrary, this program is a flexible one: coverage is dependent in part on how much money the state has,” he wrote, later concluding by calling the majority opinion, “anti-democratic budgeting by judicial fiat.” Judge O'Scannlain is also a strong critic of "judicial activism," which is often right-wing code for any rulings that expand the rights of society's least powerful members, as opposed to the interests of the wealthy and powerful that they normally protect.

Yeah, I can see why disability right advocates might have wanted to cut their losses and settle the case.

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