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

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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.

Comments

to make cuts where and when they can, if there is a serious attempt to balance the budget. And, to Brown's credit, he has significantly improved CA's budget situation, although he has not as yet addressed the looming pension shortfall. Still, he's made some sound moves.

It's always sad when a group suffers from cuts but that doesn't not mean that we should shrink from doing so when the money quite simply isn't there.

Ultimately this should be a political decision and not a legal decision. To the extent that some other law prevents sound budgetting, then maybe it is time for our elected officials to change the law.

More generally, although CA has taken steps to trim the budget, DC really hasn't started yet. So we can reasonably expect more cuts in the future.

Posted by Guest on Apr. 02, 2013 @ 11:05 am

"Sound budgeting" is a game, and the responsibilities of government go far beyond just balancing its budgets. In this case, the federal government in 1990 decided to create a new category of rights with the passage of the Americans with Disabilities Act. Because of that law, neither governments nor private business can discriminate against people with disabilities -- and that has been interpreted by the courts to mean they must provide accomodations for those with disabilities, even when they are expensive. I'll leave aside the complicated legal issues in this case surrounding whether that protects a minimum level of IHSS funding, but it's not accurate to just say California can choose to fund or not fund whatever it pleases, based on its revenues. And that's particularly true given the huge corporate tax breaks that Prop. 13 and other tax loopholes created. If we erased those by going back to voters with a split-roll amendment (letting residential property taxes remain capped while letting corporate property be taxed at market rates) then California would have plenty of money to meet all it obligations, and perhaps even to honor the pledge it once made to give affordable college educations to everyone who qualifies, which would be a smart investment in our future productivity. But I just don't buy the argument that society's most vulnerable must suffer a disproportionate burden for the sponsorship of our political system by wealthy corporations and individuals, and the lack of political will that leaves to do the right thing, both morally and economically.

Posted by steven on Apr. 02, 2013 @ 1:22 pm

"If we erased those by going back to voters with a split-roll amendment (letting residential property taxes remain capped while letting corporate property be taxed at market rates) then California would have plenty of money to meet all it obligations"

LOL. Just tax corporations more! There won't be any consequences to doing that!

Posted by Demented, Yet Terribly, Terribly, Persistent on Apr. 02, 2013 @ 1:47 pm

we can tax corporations and rents as much as we like, because they have no real world impact.

That's right, the rich just have to cut back on that thrid yacht, and all our problems are over.

Such naivety.

Posted by Guest on Apr. 02, 2013 @ 2:05 pm

Economy gets better, create more programs and useless jobs, spend 100% of what you take in. Give raises to your base, throw money at friends. Try and raise taxes.

Economy gets worse, complain about being broke, trumpet out victims, don't mention all the useless jobs and spending during the relative good times. Try and raise taxes.

Posted by Matlock on Apr. 02, 2013 @ 5:10 pm

coroporations more has no effect on society. I realize that folks like Lilli and Marcos believe that, but shouldn't editorial staff be a little more grounded in reality.

And of course he brings up that old cheshnut, Prop 13. But of course ignores a few things about it, like:

1) Since Prop 13 was introduced, CA prop tax revenues have increased by an average of 7% per annum. In theory increases are limited to 2% pa but that is boosted by sales, new build, parcel taxes, reassessments due to remodeling and other factors.

2) CA has the highestr ates of state income, sales and capital gains taxes in the nation. So taking less in property taxes, even if that were true, is more than compensated by the other taxes.

3) CA's RE values are so low that a 1.2% ad valorem prop tax take in CA is worth more than the 3% rates in places like Texas and Maine.

Red herring.

Posted by Guest on Apr. 02, 2013 @ 5:23 pm

Just like society will always improve if corporate profits are improving.

Posted by Lucretia Snapples on Apr. 02, 2013 @ 6:35 pm

money will solve the problem of stupid comments dominating the comment pages of this website.

For an example, re-read this especially ludicrous comment from Lucretia Snapples.

Down with stupidity!!!

Power to the thoughtful!!!

Posted by San Francisco Anti-Stupidity Campaign on Apr. 02, 2013 @ 8:57 pm

We are the REAL SFASC. We opine. We are present - always.

Posted by The REAL San Francisco Anti-Stupidity Campaign on Apr. 02, 2013 @ 9:11 pm

law against discrimiation can be used to prevent any cut in spending to that class of people. That implies that spending can only ever be increased; never decreased.

As the justice opined, the State never had to devote these funds to care in the first place, so it is quite simply not right that ADA now be invoked to prevent that money ever being taken away.

If we don't elect politicians to decide where our tax dollars get spent, then what? And if they can provide funds for care, then they must be able tot ake them away too.

We can have a political debate about where cuts shall fall. But you cannot hide behind ADA and claim that that implies that spending can never be cut. Debate the issue - do not try and hide behind technicalities.

Posted by Guest on Apr. 02, 2013 @ 2:03 pm

Tax levels are technicalities, civil rights are not. And because property taxes in California have been slashed (in 1978, when Prop. 13 was passed, two-thirds of property taxes came from corporations and one-third came from individuals, now that's flipped) corporations are more profitable than ever, just as our social safety net is being dismantled. These two things are connected, directly, and this isn't a meaningless technicality. Large corporations in California can and should pay more in taxes, period.

Posted by steven on Apr. 02, 2013 @ 3:06 pm

I am fine with debating how to balance the budget, and what proportion of the remedy comes from spending cuts versus taxes. Not an unusual debate to have here.

However, I think it is a very narrow reading of the "rights" of the disabled that States have to throw money at giving them in-home care on the public dime. And that somehow the existence of that law prevents a local government from ever considering making economies.

Indeed, given that welfare is consuming an ever increasing propertion of our public spending, it is inevitable that we will see more and more cuts like this. It would be more helpful if you had the debate about that rather than trying to litigate your way to intransigence in the fact of a clear voter manadate to make spending cuts.

The ADA is not a suicide pact.

Posted by Guest on Apr. 02, 2013 @ 3:21 pm

It'll be hard to debate you, Guest, if you keep basing your arguments on false assertions. It's simply not true that "welfare is consuming an ever increasing propertion [sic] of our public spending." Given the declining standard of living of those on the bottom of the socioeconomic spectrum and stubbornly high unemployment rates, I wish that your statement was true -- it would be a sign of compassion and an indicator that maybe we don't live in a plutocracy after all. But spending on welfare as a percentage of overall spending has been steadily dropping for decades now. http://www.usgovernmentspending.com/welfare_budget_2012_4.html

It's also ridiculous to call a 20 percent across-the-board cut to IHSS, made without any regard to the actual need for these services, "making economies." These cuts are being made with an ax, not a scalpel. As for these cuts being "inevitable," that's also a cop-out: cutting IHSS rather than corporate welfare or military spending is a deliberate choice that our elected officials are making, choosing to side with the strong over the weak. What's inevitable is the so-called "silver tsunami" of aging Baby Boomers that will require ever-more care on a shrinking budget, a reality that might finally begin to cause a shift in our political priorities.  

Again, as I wrote in "Do We Care?," this society seems to have plenty of money for military spending, subsidizing politically connected corporations, exploiting new markets and resources, and other masculine pursuits, but when it comes to caring for our fellow citizens, conserving our resources, educating our children, planning for the needs of future generations, and other feminine pursuits, we claim to be too broke to make the needed expenditures..

It's utterly transparent and shameful hypocrisy and myopia.

Posted by steven on Apr. 03, 2013 @ 10:36 am

of the budget, but it rather conveniently omits "healthcare" from that definition of "welfare", and healthcare constitutes 23% of the total budget. 23% is almost as much as defense, at 25%.

Moreover, the defense budget is coming down, as it constitutes 50% of the sequester cuts, which Congress approved (by default) last month. And of course healthcare costs are set to spiral, as you note yourself, because of ageing.

Notice another figure in your link, Steven? Pensions are at 22%. That's inflated pensions for public sector workers which, unlike Calpers, have no underlying funding, but rely on taxes and borrowing to afford.

Oh, and your link also excludes social security, it being off-budget and all. And of course you will know that there is no funding for that either - it's pay-as-you-go.

Oh, and interest expenses on the bonds is going up as well, and will kill us if the Fed ever stops it's "free borrowing" policy.

So yes, compassion matters. But paying your bills matters a lot more. and other than your generic "tax the rich" mantra, you totally ignore the funding part of the equation, preferring only to utter your other generic mantra - "never cut anything, ever."

Posted by anon on Apr. 03, 2013 @ 11:08 am

I so agree. . . .

Posted by Guest M H on Jul. 16, 2013 @ 9:21 am
Posted by Guest on Jul. 16, 2013 @ 11:46 am

Armed with the ADA and often times both a ruler and a burning desire to sue - the "disabled" (which now includes those with a learning disability) are hardly the shrinking violets they're portrayed as in this kind of story.

Posted by Lucretia Snapples on Apr. 02, 2013 @ 4:01 pm

It's far and away the best way to park for free anywhere in SF.

Posted by Guest on Apr. 02, 2013 @ 4:30 pm

We have many disabled people who need to drive everywhere and park for free too!

Posted by Lucretia Snapples on Apr. 02, 2013 @ 4:45 pm

But I doubt we'll see SFBG siding with them here.

Another example of infighting on the left.

Posted by Guest on Apr. 02, 2013 @ 4:55 pm

We need to end this environmental and livability threat NOW!

Posted by Lucretia Snapples on Apr. 02, 2013 @ 5:10 pm

In front of my old job there were 20 parking spots on the block..

In the morning(10am) around sixteen of those spots would have disabled cars there.

later in the day it would come and go but nothing below 50%.

I later discovered that since I was so close to Chinatown it was all part of the culture.

Anyone who complains about disabled placards is a racist like Greg.

Posted by Matlock on Apr. 02, 2013 @ 8:40 pm

You can get one of those if you're too fat. They're not means-tested. The Guardian and progressives bitch constantly about corporate welfare, which I agree is a problem. So are programs which allow those with means to get free shit - like disabled parking permits and rent control. Furthermore, as Tim and Steven constantly preach, we have a glorious public transport system which avails every citizen the ability to fast, easy and cheap service. We should not be encouraging anyone to drive through providing endless free parking.

Posted by Lucretia Snapples on Apr. 02, 2013 @ 9:08 pm

Many of those with disable placards are not disabled at all. They are like those rich socialite moms who exploit disabled people to get undeserved privileges at amusement parks. They think nothing of exploiting things that are set up for persons who actually need it. Par for the course that this nation's politicians and certain "myopic" populations are becoming worse in this regard.

Posted by Guest M H on Jul. 16, 2013 @ 9:32 am

Darn right we aren't "vulnerable" "shrinking violets"! We are fierce, powerful and proud. We have the right to live at home and receive the services we need to stay independent. We will fight for our independence and we will expect to be treated with respect and dignity. Free Our People!!

Posted by Galen on Apr. 02, 2013 @ 8:31 pm
Posted by Lucretia Snapples on Apr. 02, 2013 @ 4:50 pm

sector workers, and especially those who saved her from a risky situation.

I'd prefer to hear that from her wearing an orange jumpsuit with her hands and legs mancled.

Oh no . . .

Posted by Guest on Apr. 02, 2013 @ 4:56 pm

We all seem to get caught up in the emotion and rhetoric around these programs. Before we suggest that budget for these programs be doubled or cut in half, lets see if there are performance audits of these programs. Are they delivering services that serve those most at need and actually save us in the long run? What about quality control and prevention of fraud and abuse? I would have to assume that the majority of us whether on,left or right of political spectrum would agree that we should in fact have to provide some social safety net for those most in need. We simply want some assurance that those most in need get the help in services they need while we also have some assurance there is not abuse of these programs. It's unfortunate that we need to parade those absolutely most in need of these services before the media during fairly drastic budget cuts while ignoring the fact that there is a significant amount of fraud and abuse of the system. My understanding is that some families are getting IHSS benefits for conditions that are highly questionable and simply seek the IHHS benefit as an income source. Am I wrong? I don't know, Just show us the evidence that IHSS is a highly effective program that serves people most in need and in a cost effective manner.

Posted by Guest on Apr. 03, 2013 @ 9:07 pm

Tell you what, have and take care of a special needs person and your thoughts will change. I have a degree, but have to be home as my 8 year old daughter is non verbal and still in diapers. I worked hard, studied hard, payed my taxes... But now as a single father have no choice to be at home with my disabled daughter. Schooling is a joke, and more like daycare for someone like her. Especially in California. I know first hand, as I volunteer so that she has 24 hour care. I am living life in poverty, yet would never give up what I have for more money. I would never institutionalize her or send her to a nursing home, and dont have family to help so I could go to work. The amount of cost and care would leave me penniless. So, I get by on what I can through IHSS program. There are many other places that politicians should be looking to cut spending. The gap between rich and poor will only continue to grow. There is no longer a middle class. What does bug me about IHSS is that it seems to be taken over by those choosing not to read, write, or speak English. That is a red flag in my eyes, as many of these people seem to be here illegally, yet are receiving money from the state. Every letter i receive is written in a different language, and meetings, as well as conferense calls are dominated by families with translators. i cant tell you how many times the same questions are repeated and how much time is wasted on explaining IHSS rules or regulations. They are bringing they're families here and not contributing back to society. That is the real drain on California. The schools are greatly suffering, as well as government/ state funded programs. Stop helping those breaking the law. I realize they want to come here for a better life, and want us to feel compassion for them. However, they show no respect or desire to become a part of our system appropriately. I do agree there are many that abuse IHSS, but it is not fair to punish those that truly need the program.

Posted by Guest on Jun. 10, 2013 @ 1:14 pm

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