The Honorable Ellen Corbett
Chair, Senate Budget Subcommittee #3 State Capitol
Sacramento, CA 95814
RE: IHSS Budget: FLSA & 7% Across-the-Board Cut
Dear Senator Corbett;
The In-Home Supportive Services
(IHSS) Coalition has two budget
priorities: (1) we are emphatically opposed
to the Governor’s budget proposal
to impose a cap on providers to no more than 40 hours of work a week to avoid paying overtime, and (2) we urge the legislature to repeal the 7% across-the-board cut to IHSS hours. The IHSS Coalition
is composed of forty-nine organizations representing IHSS consumers, providers and advocates. Our goals are (1) to ensure sufficient funding
for In-Home Supportive Services and its interrelated aspects
(2) to develop potential improvements for the program, (3) to disseminate information on homecare issues
through public events
and our website, and (4) to preserve
and enhance consumer-directed services.
IHSS keeps Californians with disabilities, including seniors, in their own homes
and saves taxpayers hundreds of millions
of dollars in doing so. The IHSS program
provides personal care and domestic
services to approximately 440,000 individuals who are aged, blind or have disabilities, which allow these individuals to live safely at home rather than in unnecessary, not desired and more costly
out-of home placement facilities.
IHSS is a critical component of long-term care services in California.
By definition, IHSS consumers are very poor; the vast majority
has monthly incomes less than $1,000
and $2,000 in personal assets.
According to the California Department of Social Services
(CDSS), approximately 85% of all IHSS consumers
receive SSI/SSP. The current
maximum monthly SSI/SSP
grant for elderly
and disabled individuals is
$877 per month and the maximum
grant for couples
is $1,478. The average IHSS consumer receives
89.5 hours of service a month.
7% Across-The-Board Cut
Last year, the legislature
adopted the provisions of a settlement
agreement to resolve two
class-action lawsuits related to IHSS
cuts that were previously enacted: Oster v. Lightbourne and Dominguez v. Schwarzenegger. The
cuts that were subject to
these lawsuits were enacted
when the state was dealing
with significant budget
deficits and, if implemented, the reductions would have
been devastating to IHSS consumers
and
providers.
The settlement agreement and related implementing legislation repealed those reductions and established an 8%
across-the-board cut that took effect on July 1, 2013. Under
current law, the 8% cut
will be replaced with
a 7% across-the-board cut on July
1,
2014. The
settlement agreement also included a provision to “trigger
off” the ongoing 7%
reduction–in whole or in part–if
the state receives enhanced federal funding
pursuant to an “assessment” (likely a fee or
tax) on home care services,
including IHSS.
The 7% across-the-board cut hurts IHSS consumers
and providers. A consumer assessed
as needing
the average number of
monthly hours lost 6 of
those hours – time which
was needed for laundry or
bathing or grocery shopping. A consumer who is assessed as
needing the maximum number of hours
– 283 – lost 20 hours of
help per month – more
than two days of personal
care or domestic services.
The need didn’t go away – but
the help did.
Consumers have suffered
disproportionately in recent years,
with the IHSS hours cut compounded
by cuts
to SSI
and Medi-Cal services, which are not proposed
for
restoration in the proposed
budget.
Given the vastly improved
fiscal situation, the legislature should restore the hours
which consumers need to
remain safely in their homes.
Fair Labor Standards Act
On September 17, 2013, the U.S. Department
of Labor
issued final regulations, effective January 2015,
that apply the federal minimum
wage and overtime protections of the Fair
Labor Standards Act (FLSA)
to most of the two-million-plus home care workers
in the
United States. The new rules
significantly narrow the
“companionship exemption”
that has long excluded home
care workers from basic federal
wage and hour
protections. The Governor’s budget proposal would
circumvent the new federal
rule that requires additional overtime pay for domestic workers by
prohibiting all IHSS providers
from working more than 40
hours a week. Currently, IHSS caregivers
can
work more than 40 hours
a week but are paid straight
time for working the extra
hours.
The Governor’s proposal, if
enacted, would be devastating
to IHSS
consumers and providers.
The following consequences
are
sufficiently compelling for the legislature
to
reject this budget
proposal and appropriate sufficient funds to pay overtime to IHSS providers.
·
Continuity of Care:
The overtime prohibition would
force those who have an
IHSS provider working more
than 40 hours a week to find
someone else to work the
hours above 40. Seniors and
people with disabilities who require
care beyond 40 hour a
week would be forced to
rely on temporary or alternative
caregivers with less experience and
familiarity with their unique needs. Especially
concerning are the impacts on
children and adults with disabilities
for whom consistency is an
essential part of care,
including people with dementia
who can suffer adverse consequences in
the hands of unfamiliar caregivers.
Almost two-thirds of IHSS
recipients receive care from a provider
who is related to them.
Moreover, about 46 percent of IHSS recipients
receive care from either their own
parent, spouse, or adult child
(defined as a “close relative”). In about half of cases,
IHSS providers live in the
same home as the IHSS recipient.
When IHSS services are
provided by a person having the
legal duty to provide for the care of his or her child,
the parent provider will receive
payment for IHSS only when
that person leaves full-time
employment or is prevented from obtaining full time
employment because no other
suitable provider is available, and, if care is
not given by that person,
the child may be subject
to inadequate
care or inappropriate placement.
·
IHSS providers
are not interchangeable: Personal
care is very private. Consumers, including
seniors, have strong preferences and needs when it
comes to the people
who do this work.
Some consumers are monolingual in
a language other than English;
some prefer a worker of one gender,
or from
a similar cultural background. Some will not accept
care from anyone other than
a spouse or family member or other trusted provider.
Consider the parents who
have been the sole caretakers
for their children, with significant disabilities, for years or
decades. Those parents will
lose the income which has
provided a roof and stable life,
will have to go find
other work while leaving
the child in the hands of a stranger.
·
Consumer
choice is a cornerstone
of the IHSS program, which
will be deeply eroded
by this
proposal. IHSS consumers have the
right to hire, fire and
supervise their provider and
they take into consideration their unique language needs
along with the intimate
nature of personal care service. Consumers
often train their IHSS provider
to handle their personal care services. Imposing
a 40-hour cap per provider to
avoid paying overtime would force
consumers to hire new providers
and, by doing so, could put themselves at risk for substandard care because the new
provider would not be
familiar with their unique needs.
·
Availability of workforce: The Governor’s proposal assumes
that somewhere around 30,000
– 50,000 Californians, who are not now
IHSS home care workers,
will somehow be willing
and available to do this
work. There is no factual
basis for this assumption.
In rural
California, often the only available person to provide care
is a family member.
·
Availability of workers for new
Provider Back-up System: The governor’s budget assumes the
construction of a new system of back-up
workers, who would be available, on short notice, to fill
any unexpected needs of
consumers who are
unable to have their
scheduled provider perform the needed
work. The challenges and expense of
such as system are underestimated;
nowhere has such a service been created
on anywhere
near the scale required.
·
Reductions
to provider income/consumer household income: By prohibiting work after 40 hours, the proposal sharply limits the ability of
caregivers to provide for their families.
The sole
source of income for
63% of providers is from
the IHSS program.
Because of the
loss of hours, IHSS providers
would lose income. IHSS providers
who are living near or
below the poverty level will
be severely
impacted by these cuts.
Many providers are eligible for
food stamps, and few have
access now to health
insurance. Many IHSS providers would lose their health
benefits because the cut
in hours
could put them below the
eligibility levels to qualify for health benefits through
their Public Authority. In about half of cases, IHSS providers
live in the same home as the IHSS recipient. The loss of income to the provider would impact the overall
household income, leaving the consumer with
insufficient funds to pay rent.
The unintended consequence
could force many IHSS consumers
to move
out
of their homes and into
institutional care.
·
Olmstead considerations: In its
1999 Olmstead decision, the US
Supreme Court confirmed that unnecessary institutionalization of people with
disabilities violates their civil
rights. Insofar as consumers’ homes and care are
disrupted by the overtime
ban, and consumers face otherwise
unnecessary institutionalization, the state will
be defying the Olmstead mandate.
· Concerns with the administration’s proposal:
o Workweek
arrangements – funding for
county IHSS administrative costs for social
workers to respond to questions
from consumers and providers about the new
overtime policy and workweek arrangement
may be
understated.
Counties and
Public Authorities experienced
a high volume of calls
and walk-ins by consumers and providers with problems and
questions about the new timesheet for CMIPS
II. Lessons learned by the
pilot counties and Public
Authorities were helpful through the
conversion process to help as new
counties and PAs cut
over to CMIPS II.
The budget proposal assumes implementation
for all 58 counties on January
1, 2015
– and there won’t be any pilot
process to develop best practices. Hence,
the workload may be much
higher than anticipated by the
administration to explain the
new
overtime policy and
establish workweek arrangements between
consumers and providers.
o
Insufficient information about the Provider Back-up System – The administration
has not provided data in written format
on the
number of providers who
currently work more than 40 hours
a week. We
got a verbal report from
CDSS on January 17, 2014,
but the information was confusing and
we asked
for documentation that hasn’t been
released to date. Because
providers
must be trained to provide
paramedical services by physicians
and other medical practitioners, back-up providers would not be
allowed to provide these
critical services.
o
Two-Strikes and You’re Out: The
administration is proposing
to terminate IHSS
providers with 4 hours of
unauthorized overtime on a second offense
for
one year. This proposal
is very
harsh and generates a number of
questions.
§ IHSS providers
receive their new timesheet with the paycheck from
the
prior pay period. If there
is a problem with processing a timesheet, the provider doesn’t get a paycheck in a timely
manner and also doesn’t
receive a timesheet for the next pay
period.
§ Could a provider
be terminated if
they simultaneously submit timesheets for multiple pay periods where
overtime was worked and therefore compensable at premium pay? What is the “lag” time between a warning notice
being sent to providers and the system flagging
the event as a “first” or
“second” strike? The
concern is that providers
could be terminated without receiving sufficient notice.
§ CDSS has
stated that all enrollment requirements would kick-in if
an
individual wishes to
re-enroll as an IHSS provider after
their 1-year penalty period
has expired. This means
providers would have to pay for
another criminal background check and
attend orientation again.
§ Provider appeals
– CDSS indicates they intend
to establish
an appeals process
for providers to pay out
the reason/justification for unauthorized
overtime so that a terminated provider could be reinstated. There
are no details and the administration
indicated input would be
obtained through a stakeholder process.
§ Wait time
during medical accompaniment
& travel time – The FLSA regulations require payment of
wages for actual time spent by a provider
who is assigned to more
than one client per
day and for wait time while
accompanying a consumer
to a medical appointment. The Governor’s
budget appropriately designates
funds to comply with these provisions
of the
FLSA.
Closing Comments:
After many
years of budget deficits, California is experiencing higher revenues
than projected in the
2013-14 budget, with an additional
$6.3 billion in unanticipated revenue from 2012-2013
budget through 2014-2015 budget. State revenues
are coming in higher than these projections, so it’s likely that
the surplus will be greater
than seven billion dollars. This
sizable surplus provides the legislature with the resources to repeal the
7% cut
and comply with the
federal FLSA regulations by paying overtime.
This year,
we need
all of you to do
what you know is right
– and what you've done before: Stand
up for
the California consumers of IHSS, their families
and the workers who
provide their much-needed care. We
call on you to reject the Governor’s
proposal
to cap
provider hours to avoid paying
overtime and to repeal the
7% across-the-board cuts.
Sincerely, AARP-California
Access to Independence
ACLU of Southern California
Alzheimer's Association, California
Council California Alliance for
Retired Americans (CARA) California
Association of Public Authorities
(CAPA) California Church IMPACT
California Council of Churches
California Council of the Alzheimer’s Association California
Council of the Blind
California Disability Community Action network
(CDCAN) California Foundation for Independent Living (CFILC) California
IHSS Consumer Alliance (CICA)
California Senior Legislature
California State Council on Developmental Disabilities California
United Homecare Workers (CUHW)
Californians for Disability
Rights, Inc. (CDR) Communities Actively Living Independent & Free (CALIF) Congress
of California
Seniors
Dayle McIntosh
Center for the Disabled
Disability Rights California
(DRC)
East Bay
Community Law Center FREED
Center for Independent Living Friends
Committee on Legislation Gray Panthers
IN
SPIRIT
Independent
Living Resource Center Inc.
Independent Living Services of Northern California (ILSNC) Marin
IHSS Public Authority
National Senior
Citizen’s Law Center Nevada-Sierra-Plumas
Public Authority Northern California
ADAPT
Older Women’s League
Personal Assistance
Services Council of Los Angeles
Resources for Independent
Living
San Francisco
IHSS Task Force San
Francisco Public Authority SEIU
Local 521
SEIU United Healthcare Workers West
SEIU United
Long Term Care Workers
Senior & Disability Action (SDA)
Service Employees
International Union – State
Council Silicon Valley Independent
Living Center (SVILC) Southeast
Asia Resource Action Center |
California Office The
Arc and United Cerebral Palsy
in California
The San Diego IHSS
Coalition
Tri-County Independent Living Center, Inc. UDW
/AFSCME Local 3930
Westside Center For Independent
Living (WCIL)
cc: Members, Senate Budget
Subcommittee #3
Jackie Wong,
Office of the Senate President Pro
Temp Samantha Lui, Consultant,
Senate Budget Committee Chantelle
Denny, Senate Republican Fiscal Office
Matt Paulin,
Program Budget Manager, HHS, Department
of Finance Will
Lightbourne, Director, California Department of Social Services
Michael Wilkening, Health and Human Services
Agency
Rashi
Kesarwani, Legislative Analyst’s
Office
