V. et al v. Wagner et al

Filing 542

ORDER by Judge Claudia Wilken Granting 541 Stipulation for Dismissal. (Attachments: # 1 Exhibit A) (ndr, COURT STAFF) (Filed on 8/7/2013)

EXHIBIT A

SETTLEMENT AGREEMENT
I.

INTRODUCTION
1.

This Settlement Agreement (Agreement) globally resolves the following two

class-action lawsuits: Oster v. Lightbourne, N.D. Cal., Case No. CV 09-04668 CW, U.S. Court
of Appeals for the Ninth Circuit, Case No. 12-15366 (Oster); and Dominguez v. Brown, N.D.
Cal., Case No. CV 09-02306 CW, U.S. Court of Appeals for the Ninth Circuit, Case No. 0916359 (Dominguez). It is the intent of the Parties that this Agreement will fully and finally
resolve the Oster and Dominguez cases. This Agreement represents substantial compromises
among all the Parties, and addresses the long term stability of the programs at issue in these cases
for the benefit of recipients, providers, and the State of California.
II.

PARTIES
2.

The Individual Named Plaintiffs in Oster are David Oster; Willie Beatrice

Sheppard; C.R., by and through his guardian ad litem, M.R.; Dottie Jones; Andrea Hylton; Helen
Polly Stern; Charles Thurman; and L.C., by and through her guardian ad litem, M.G. The
Organizational Plaintiffs in Oster are Service Employees International Union-United Healthcare
Workers West; Service Employees International Union-United Long Term Care Workers;
Service Employees International Union Local 521; Service Employees International Union State
Council; United Domestic Workers of America, AFSCME Local 3930, AFL-CIO; and California
United Healthcare Workers. Defendants in Oster are Will Lightbourne, Director of the
California Department of Social Services (CDSS); Toby Douglas, Director of the California
Department of Health Care Services (DHCS); CDSS; and DHCS.
3.

The Individual Named Plaintiffs in Dominguez are Patsy Miller; Alex Brown, by

and through his mother and next friend Lisa Brown; Donna Brown; Chloe Lipton, by and
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through her conservator and next friend Julie Weissman-Steinbaugh; Herbert M. Meyer;
Charlene Ayers; Leslie Gordon; Willie Beatrice Sheppard; Andy Martinez; and Carolyn Stewart,
on behalf of themselves and a class of those similarly situated. The Organizational Plaintiffs in
Dominguez are Service Employees International Union-United Healthcare Workers West;
Service Employees International Union-United Long Term Care Workers; Service Employees
International Union Local 521; Service Employees International Union California State Council;
United Domestic Workers of America, AFSCME Local 3930, AFL-CIO; and California United
Homecare Workers. State Defendants in Dominguez are Will Lightbourne, Director of CDSS,
and Toby Douglas, Director of DHCS.1
4.

The term “Plaintiffs” in this Agreement refers to all individual and organizational

plaintiffs as well as the Classes for Oster and the amended class for Dominguez.
5.

The term “State Defendants” in this Agreement refers to the state officer and state

entity defendants in both Oster and Dominguez.
6.

The term “Parties” in this Agreement refers to Plaintiffs and State Defendants.

7.

The term “IHSS recipients” in this Agreement refers to all recipients in the State

of California who receive services through the In-Home Supportive Services (IHSS), IHSS Plus
Option, Personal Care Services, or Community First Choice Option programs.
1

By operation of law, named defendant John A. Wagner is replaced by his successor, Will
Lightbourne; and named defendant David Maxwell-Jolly is replaced by his successor, Toby
Douglas. Governor Edmund G. Brown Jr., Controller John Chiang, Fresno County, and Fresno
County In-Supportive Services Public Authority are currently named defendants in Dominguez
but are not parties to this settlement agreement. Plaintiffs have agreed to dismiss with prejudice
Brown and Chiang, with all parties to bear their own fees and costs. Plaintiffs have also agreed
to dismiss Fresno County and Fresno County IHSS Public Authority without prejudice, with all
parties to bear their own fees and costs. Plaintiffs are not releasing any claims against Fresno
County or Fresno County IHSS Public Authority arising from this county’s request for or
implementation of a future reduction in IHSS wages.
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III.

JURISDICTION
8.

The United States District Court has jurisdiction over the claims against all

defendants pursuant to 28 U.S.C. §§ 1331, 1343, and 1367. Venue is proper in the Northern
District of California pursuant to 28 U.S.C. § 1392(b).
IV.

CLASS DEFINITIONS
9.

The district court has previously certified the Oster Classes as set forth below and

appointed as Class Representatives the Individual Named Plaintiffs listed in paragraph 2 of the
Agreement:
Class A:
All IHSS recipients in the State of California whose IHSS services
will be limited, cut, or terminated under the provisions of ABX4 4, and all
applicants to IHSS in the State of California who would have been eligible for
IHSS services but who are either not eligible, or are eligible for fewer services, as
a result of ABX4 4.
Class B:
All IHSS recipients in the State of California who have received or
will receive notices of action that include a reduction of IHSS hours based on SB
73 or Defendants’ implementation of SB 73, including future applicants for IHSS
services whose notice of action will reflect reduced IHSS hours as a result of SB
73 or Defendants’ implementation of SB 73.
10.

The district court has previously certified a Class in Dominguez and appointed as

Class Representatives the Individual Named Plaintiffs listed in paragraph 3 of this Agreement.
The Parties agree that, due to changes in factual circumstances, the Class definition should be
amended by adding five counties (Los Angeles, Madera, Mariposa, San Joaquin, and Yuba).
Accordingly, in connection with preliminary approval of the Settlement Agreement, Plaintiffs
will ask the district court to amend the class definition to the following:
All IHSS recipients who reside in Alameda, Calaveras, Contra Costa, Fresno, Los
Angeles, Madera, Marin, Mariposa, Mendocino, Monterey, Napa, Placer,
Riverside, Sacramento, San Benito, San Francisco, San Joaquin, San Luis Obispo,
San Mateo, Santa Barbara, Santa Clara, Santa Cruz, Solano, Sonoma, Yolo, and
Yuba counties.
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11.

If the district court does not approve this Agreement, the Parties agree that State

Defendants will not be prejudiced or bound by anything in this Agreement, and instead, State
Defendants will have whatever rights they would have had before they entered into this
Agreement to contest that the Plaintiffs are appropriate class representatives, and/or to contest
that the Oster and Dominguez classes meet the requirements of Federal Rules of Civil Procedure
23(a) and 23(b)(2).
V.

REDUCTION IN NUMBER OF AUTHORIZED HOURS
12.

Contingent upon enactment of the state legislation described in Exhibit A of this

Agreement, State Defendants will implement an 8 percent across-the-board reduction in
authorized service hours that shall run for 12 consecutive months. It is the intent of the Parties
that this reduction be implemented on July 1, 2013.
13.

Effective 12 months after implementation of the 8 percent reduction set forth in

the preceding paragraph, and contingent upon enactment of the state legislation described in
Exhibit A of this Agreement, State Defendants will replace the 8 percent reduction with, and will
implement, an ongoing 7 percent across-the-board reduction in authorized service hours.
14.

The reductions identified in paragraphs 12 and 13 shall not be in addition to the

current 3.6 percent across-the-board reduction of authorized service hours. The current reduction
of 3.6 percent terminates by operation of law on July 1, 2013. It is the intent of the Parties to
avoid any time period during which the 3.6 percent reduction has expired but the 8 percent
reduction has not yet been implemented.
15.

The reductions identified in paragraphs 12 and 13 will be the result of a change in

state law and therefore are not subject to appeal by state fair hearing, administrative hearing, trial
court, or otherwise. Any such appeal can be administratively denied, and the recipient will not
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have “aid-paid-pending” rights in such an appeal. No further legislative authority, beyond that
provided in Exhibit A, shall be necessary to implement the reductions described in paragraphs 12
and 13.
16.

Recipients shall retain their right to request a reassessment based on a change in

circumstances consistent with California Welfare and Institutions Code section 12301.1(d) (as of
2013). In accordance with applicable law, recipients shall not be required to provide a
physician’s note or medical certification of a change in their medical condition in order to obtain
a reassessment. An IHSS recipient may appeal the denial of a request for a reassessment, and
CDSS will instruct the counties to notify recipients subject to a denial of that right to appeal. A
recipient who appeals the denial of a reassessment will not have “aid-paid-pending” rights in
such an appeal. A request for reassessment based solely on the reductions of authorized service
hours identified in paragraphs 12 and 13 can be administratively denied, but is still subject to the
right to appeal described above.
17.

CDSS agrees to provide the information in the preceding paragraph to the

counties through the provision of an All-County Letter (ACL). Plaintiffs will have the
opportunity to review and comment on a draft of the ACL prior to finalization and distribution to
the counties. CDSS also agrees to provide the information regarding reassessment and appeals
in the preceding paragraph to recipients in the Notice of Action (NOA) regarding the 8 percent
reduction in paragraph 12. Plaintiffs will have the opportunity to review and comment on a draft
of the NOA prior to finalization and distribution to recipients.

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VI.

STATE LEGISLATION REGARDING AN ASSESSMENT
18.

The Parties agree to jointly discuss, and State Defendants will submit to the

Legislature, proposed legislation authorizing an assessment on home care services, including but
not limited to, home health care and IHSS (Assessment).
19.

If the Assessment is passed by the Legislature, then State Defendants shall submit

a request by October 1, 2014, to the federal Centers for Medicare and Medicaid Services (CMS)
for authorization to implement the Assessment and shall work with Plaintiffs in good faith to
obtain CMS approval of this Assessment.
20.

The Parties’ counsel shall meet and confer, in person or telephonically, regarding

the status of the Assessment in October 2013, March or April 2014, and August or September
2014. If the Assessment is not submitted to CMS by October 1, 2014, the Parties will discuss
next steps, and if a resolution is not reached, either Party may submit the dispute to the district
court for resolution and for fashioning appropriate remedies needed to facilitate the submission
of the Assessment to CMS for approval.
21.

If the Assessment is approved by CMS, the general fund savings generated by the

Assessment revenues will offset the reduction in authorized service hours set forth in paragraph
13, up to 7 percent, as set forth Section 12YYY attached hereto as part of Exhibit A.
22.

State Defendants will pursue retroactive implementation of the Assessment. If

CMS approves retroactive implementation of the Assessment, the one-time savings from that
retroactive implementation, as determined by the director of the Department of Finance, shall be
reinvested for the benefit of recipients. The Parties shall discuss how this reinvestment should
occur; however, the implementation of this reinvestment shall be subject to applicable legislative
approval.
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VII.

OTHER STATE LEGISLATION
23.

The Parties agree to jointly support passage by the Legislature of the legislation

attached in Exhibit A hereto (which includes the repeal of Cal. Welf. & Inst. Code §§ 12301.07,
12306.1(d)(6) & (d)(7), 12309(e)-(i), & 12309.2) as soon as possible, but no later than May 24,
2013. If this legislation is not enacted by June 1, 2013, or is enacted with substantive alteration
(e.g., different percentage reductions than set forth in this Agreement), the Parties shall meet and
confer to discuss next steps. If this legislation is not passed by the Legislature or is passed with
substantive alteration, or is not delivered to the Governor by November 1, 2013, then the Parties
shall meet and confer to determine whether they can agree upon a mutually acceptable solution.
If the Parties cannot reach such agreement, at that time, any Party may declare the Agreement
null and void.
24.

The Parties agree to jointly support passage by the Legislature of legislation that

would authorize the creation of an assessment such as described in Section VI.
VIII. JOINT REQUEST FOR FEDERAL APPROVALS IF NECESSARY
25.

The Parties agree to jointly support federal approvals, if any are necessary, to

implement this Agreement.
IX.

DISTRICT COURT APPROVAL AND ENFORCEMENT OF SETTLEMENT
26.

The Class Representatives agree to file on behalf of the certified classes in Oster

and the amended class in Dominguez, and all other Parties agree to support, a motion with the
district court to request a fairness hearing pursuant to Federal Rule of Civil Procedure 23(e) and
to seek the district court’s preliminary and final approvals of this Agreement in Oster and
Dominguez. The Parties will cooperate in presenting this Agreement to the district court at the
fairness hearings and will take all steps necessary to seek and obtain the district court’s approval.
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If the district court withholds its approval of this Agreement or the settlement for any reason, the
Parties shall meet and confer to determine whether this Agreement can be amended or modified
in a manner so as to secure the district court’s approval. If this is not attained, this Agreement
shall be null and void.
27.

If the district court approves the Agreement but an appeal is filed, the Parties shall

meet and confer to discuss opposing that appeal. If an appeal results in the district court’s
approval of the Agreement being overturned, the parties shall meet and confer to discuss next
steps.
28.

The Parties agree to stipulate and request district court approval for a proposed

schedule, attached as Exhibit B and incorporated into this agreement as if fully set forth herein.
The proposed schedule assumes that the district court will not require individually mailed notice.
The Parties agree to meet and confer to discuss alternate dates in the event that any portion of the
proposed schedule becomes impracticable or is not approved by the district court.
29.

The Class Representatives, on behalf of the certified classes in Oster and the

amended class in Dominguez, will propose to the district court, and all Parties agree to support,
that the Classes be notified of the proposed settlement as set forth in the Class Notice Plan
contained in Exhibit C to this Agreement.
30.

Following enactment of the legislative language referenced in Exhibit A, without

substantive alteration, and final approval of the Settlement Agreement by the district court, the
Parties agree to jointly move to dismiss all appeals in Oster and Dominguez within 30 days after
enactment of the legislation set forth in Exhibit A.
31.

Within 30 days of the date that the appeals have been dismissed and the

legislation enacted, the Parties agree to ask the district court to enter final judgment dismissing
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the Oster and Dominguez actions as to State Defendants, ordering the Parties to comply with the
Agreement, and retaining jurisdiction to enforce the provisions of the Agreement and fashion
remedies in the event that a Party violates the Agreement. The district court shall retain
jurisdiction for 30 months after the date of CMS approval or disapproval of the Assessment. A
copy of each of the Final Judgments, that the Parties agree to ask the district court to enter, is
attached hereto as Exhibit D.
X.

ATTORNEYS’ FEES AND COSTS
32.

Each Party will bear its own attorneys’ fees and costs, and no attorneys’ fees or

costs against any Party shall be awarded in Oster, Dominguez, or any appeals therefrom, or any
action to enforce the terms of this Agreement.
XI.

SCOPE OF AGREEMENT
33.

Upon final approval of this Agreement pursuant to Federal Rule of Civil

Procedure 23(e), Plaintiffs hereby release any and all claims, damages, liabilities, rights, and
complaints against State Defendants asserted in Oster and/or Dominguez, except for any claims
for enforcement of this Agreement. Plaintiffs agree not to bring or support any lawsuit
challenging any provisions of this Agreement. Plaintiffs reserve and are not waiving the right to
challenge, on any ground including those previously asserted in Oster and Dominguez, any of the
following acts that may occur after this Agreement is signed: any state reductions in
participation in IHSS wages and/or state approval of wage reductions in IHSS wages; any state
reductions of IHSS hours, services, or eligibility other that those set forth in this Agreement; and
any due process challenge to State Defendants’ notices of action or provision of hearing rights in
relation to IHSS services, assessments, or reassessments other than those required by this
Agreement.
Page 9 of 13

XII.

NO ADMISSION OF LIABILITY OR WAIVER OF RIGHTS
34.

State Defendants expressly deny each and all of the claims and contentions

alleged against them in these actions. Plaintiffs expressly contend that all claims for relief in
these actions are meritorious. This Agreement, anything contained herein, and any negotiations
or proceedings hereunder shall not be construed as or deemed to be an admission, presumption,
evidence of, or concession by any State Defendant of the truth of any fact alleged or the validity
of any claim which has or could have been asserted in this action, or of the deficiency of any
defense which has or could have been asserted in this action or of any wrongdoing or liability
whatsoever.
35.

This Agreement, the fact of its existence, and any term thereof shall not be

construed as an admission by any State Defendant, or used as evidence against any State
Defendant, in any civil, criminal, or administrative action or proceeding except to the extent
necessary to enforce claims for a breach of this Agreement.
XIII. EFFECTIVE DATE OF SETTLEMENT AGREEMENT
36.

The effective date of this Agreement shall be 30 days from entry of final

approval of this Agreement pursuant to Federal Rule of Civil Procedure 23(e) in Oster and
Dominguez.
XIV. ADDITIONAL PROVISIONS
37.

This Agreement contains all of the terms and conditions agreed upon by the

Parties hereto, and no oral agreement entered into at any time nor any written agreement entered
into prior to the execution of this Agreement regarding the subject matter of this Agreement shall
be deemed to exist, or to bind the Parties hereto, or to vary the terms and conditions contained
herein.
Page 10 of 13

38.

This Agreement may only be amended, modified, or supplemented by an

agreement in writing signed by all Parties and approved by the court specifying its intent to
modify this Agreement.
39.

The Parties agree to use their best efforts to carry out the terms of the Agreement.

At no time shall any of the Parties seek to solicit or encourage members of the Settlement Class
to submit objections to the Agreement or to appeal from the order giving final approval to the
Agreement.
40.

All Parties to this Agreement, through their respective counsel, have participated

in its drafting and, consequently, any ambiguity shall not be construed for or against any party.
41.

This Agreement shall inure to the benefit of and be binding upon the legal

representatives and any successor of any party hereto.
42.

Each of the undersigned attorneys represents that he or she has been duly

authorized to enter into this Agreement.
43.

Each signatory to this Agreement represents and warrants that he/she is

authorized to sign this Agreement and bind the party on behalf of whom he/she signs.
44.

This Agreement may be executed in counterparts, each of which will be deemed

to be an original and all of which taken together shall constitute a single instrument. This
Agreement may be executed by signature via facsimile transmission or electronic mail, which
shall be deemed to be the same as an original signature.

Page 11 of 13

Dominguez Class Counsel and Oster Class Counsel
Dominguez Class Counsel

Oster Class Counsel

Stephen P. Berzon
Altshuler Berzon LLP

Melinda Bird
Disability Rights California

Scott A. Kronland
Altshuler Berzon LLP

Marilyn Holle
Disability Rights California

Stacey M. Leyton
Altshuler Berzon LLP

Sujatha Jagadeesh Branch
Disability Rights California

Peder J. Thoreen
Altshuler Berzon LLP

Dara L. Schur
Disability Rights California

Anne N. Arkush
Altshuler Berzon LLP

Anna Rich
National Senior Citizen Law Center
Paula Pearlman
Disability Rights Legal Center
Charles Wolfinger
Law Office of Charles Wolfinger
Jane Perkins
National Health Law Program

EXHIBIT A

3/27/2013

SEC. 1. Section 12301.01 is added to the Welfare and Institutions Code, to read:
12301.01. (a) (1) Notwithstanding any other provision of law, except as provided in subdivision
(d), the department shall implement an eight (8) percent reduction in hours of service to each
recipient of services under this article, which shall be applied to the recipient's hours as
authorized pursuant to the most recent assessment. This reduction shall become effective July 1,
2013. This reduction shall be effective for 12 months. The reduction required by this section
shall not preclude any reassessment to which a recipient would otherwise be entitled. However,
hours authorized pursuant to a reassessment shall be subject to the 8 percent reduction required
by this section.
(2) A request for reassessment based on the reduction required in paragraph (1) can be
administratively denied by the county.
(3) A recipient of services under this article may direct the manner in which the reduction of
hours is applied to the recipient's previously authorized services.
(4) For those individuals who have a documented unmet need, excluding protective supervision
because of the limitations on authorized hours under Section 12303.4, the reduction shall be
taken first from the documented unmet need.
(b) The reduction in hours of service pursuant to paragraph (1) of subdivision (a) shall cease to
be implemented 12 months after the reduction takes effect.
(c) The notice of action informing the recipient of the reduction pursuant to subdivision (a) shall
be mailed at least 10 days prior to the reduction going into effect. The notice of action shall be
understandable to the recipient and translated into all languages spoken by a substantial number
of the public served by the In-Home Supportive Services program, in accordance with Section
7295.2 of the Government Code. The notice shall not contain any recipient financial or
confidential identifying information other than the recipient's name, address, and Case
Management Information and Payroll System (CMIPS) client identification number, and shall
include, but not be limited to, all of the following information:
(1) The aggregate number of authorized hours before the reduction pursuant to subdivision (a)
and the aggregate number of authorized hours after the reduction.
(2) That the recipient may direct the manner in which the reduction of authorized hours is
applied to the recipient's previously authorized services.
(3) A county shall assess a recipient's need for supportive service any time that the recipient
notifies the county of a need to adjust the supportive services hours authorized, or when there are
other indications or expectations of a change in circumstances affecting the recipient's need for
supportive services. Counties shall not require recipients to submit a medical certification form
or a doctor’s note to show evidence of a change in the recipient’s circumstances.

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3/27/2013

(d) A recipient shall have all appeal rights otherwise provided for under Chapter 7 (commencing
with Section 10950) of Part 2.
SEC. 2. Section 12301.02 is added to the Welfare and Institutions Code, to read:
12301.02. (a) (1) Notwithstanding any other provision of law, except as provided in subdivision
(c), the department shall implement a seven (7) percent reduction in hours of service to each
recipient of services under this article, which shall be applied to the recipient’s hours as
authorized pursuant to the most recent assessment. This reduction shall become effective 12
months after the implementation of the reduction set forth in Section 12301.01. The reduction
required by this section shall not preclude any reassessment to which a recipient would otherwise
be entitled. However, hours authorized pursuant to a reassessment shall be subject to the 7
percent reduction required by this section.
(2) A request for reassessment based on the reduction required in paragraph (1) can be
administratively denied by the county.
(3) A recipient of services under this article may direct the manner in which the reduction of
hours is applied to the recipient's previously authorized services.
(4) For those individuals who have a documented unmet need, excluding protective supervision
because of the limitations on authorized hours under Section 12303.4, the reduction shall be
taken first from the documented unmet need.
(b) The notice of action informing the recipient of the reduction pursuant to subdivision (a) shall
be mailed at least 20 days prior to the reduction going into effect. The notice of action shall be
understandable to the recipient and translated into all languages spoken by a substantial number
of the public served by the In-Home Supportive Services program, in accordance with Section
7295.2 of the Government Code. The notice shall not contain any recipient financial or
confidential identifying information other than the recipient's name, address, and Case
Management Information and Payroll System (CMIPS) client identification number, and shall
include, but not be limited to, all of the following information:
(1) The aggregate number of authorized hours before the reduction pursuant to subdivision (a)
and the aggregate number of authorized hours after the reduction.
(2) That the recipient may direct the manner in which the reduction of authorized hours is
applied to the recipient's previously authorized services.
(3) A county shall assess a recipient's need for supportive service any time that the recipient
notifies the county of a need to adjust the supportive services hours authorized, or when there are
other indications or expectations of a change in circumstances affecting the recipient's need for
supportive services. Counties shall not require recipients to submit a medical certification form
or a doctor’s note to show evidence of a change in the recipient’s circumstances.

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3/27/2013

(c) A recipient shall have all appeal rights otherwise provided for under Chapter 7 (commencing
with Section 10950) of Part 2.
(d) The reduction specified in paragraph (1) of subdivision (a) shall be ongoing and may be
adjusted pursuant to Section 12YYY.
SEC. 3. Section 12YYY is added to the Welfare and Institutions Code, to read:
12YYY. (a) It is the intent of this Section to offset the reductions described in Section 12301.02
to the extent that an assessment as described in Section 12XXX provides General Fund savings.
This section shall become operative only upon the certification by the Department of Health Care
Services as described in of Section 12XXX.
(b) Within 30 days after receipt of the certification described in 12XXX, the Director of Finance
shall perform the obligations described in this subdivision for the fiscal year in which the
certification is received and for the following fiscal year. Specifically, the Director of Finance
shall:
(1) Estimate the total amount of additional funding, less refunds, that will be derived from the
assessment for the next fiscal year.
(2) Estimate the amount of the total revenues, if any, that are attributable to any permitted
retroactive implementation of the assessment.
(3) Estimate the amount of the total General Fund savings generated by the assessment revenues
that remain after taking into account reductions such as the revenues attributable to any
retroactive application of the assessment that will be allocated pursuant to section 12ZZZ, and
any General Fund costs associated with establishment and administration of the assessment.
(4) Calculate, as a percentage, the amount by which the reduction described in section 12301.02
is offset by General Fund savings. In making this calculation the Director of Finance shall
estimate the amount of the reduction that may be partially or completely offset. If the estimated
General Fund savings from the assessment are less than the amount required to fully offset the
reduction pursuant to Section 12301.02, then the percentage offset shall be proportionate to the
level of General Fund savings. At no point may the reduction pursuant to Section 12301.02
become negative or go below zero.
(5) Notify the Joint Legislative Budget Committee of the determinations made in paragraphs
(1)-(4).
(c) On or before May 14, prior to the third fiscal year after the certification described in 14XXX
is received, the Director of Finance shall perform the activities described in paragraphs (1)-(5) of
subdivision (b).
(d) Within 10 days of the effective date of any federal change or action that prevents or reduces
the amount of General Fund savings received from the assessment, the Director of Health Care
Services shall provide a notification to the Joint Legislative Budget Committee and the Director
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3/27/2013

of Finance of such a change. Within 30 days of the receipt of this notification, the Director of
Finance shall perform the activities described in paragraphs (1)-(5) of subdivision (b).
(e) Notwithstanding any provision of Section 12301.02, the reduction of services required by
Section 12301.02 shall be mitigated by the percentage offset determined by the Director of
Finance in paragraph (4) of subdivision (b) of this Section.
(f)(1) Any change in the percentage reduction of services as provided in Section 12301.02 shall
occur on the first day of the first full month occurring 30 days after the determination provided
for in subdivision (b) is made by the Director of Finance.
(2) Any change in the percentage reduction of services as provided in Section 12301.02 due to a
determination of the Director of Finance required by subdivision (c) shall occur on July 1 of the
fiscal year immediately following the determination.
(3) If a change in the percentage reduction of services as provided in Section 12301.02 is
triggered based on a determination of the Director of Finance required by subdivision (d), that
change in hours of service shall occur on July 1 after the notification referenced in subdivision
(d) from the Director of Health Care Services is received, if the notification is received between
the preceding September 30 and January 2. If the notification is received on any other date, then
a change in hours shall occur on the first of the month that is nine months after the notification is
received.
(g) In preparation of every Governor’s Budget and for every May Revision the Director of
Finance shall perform the obligation described in paragraph (1)-(3) of subdivision (b).
SEC. 4 Section 12ZZZ is added to the Welfare and Institutions Code, to read:
12ZZZ. (a) There is hereby created in the State Treasury an In-Home Supportive Services
Reinvestment Fund (“Fund”), which shall receive monies to the extent that an assessment
described in Section 12XXX is implemented retroactively.
(b) The Fund shall be used to provide goods or services for one-time direct reinvestments
benefiting IHSS recipients.
(c) The Fund shall be used in a manner that does not create ongoing General Fund obligations.
(d) Pursuant to 12YYY, the Director of the Department of Finance shall estimate the amount of
retroactive fee due to the Fund. In each fiscal year for which there are estimated retroactive
revenues, the Director of Finance shall provide the State Controller a schedule of what portion of
the fee shall be deposited in the Fund.
(e) Notwithstanding Government Code Section 13340, the Fund is continuously appropriated to
the Department of Social Services to be reinvested, following consultation with plaintiffs in the
lawsuits identified below, for the benefit of IHSS recipients in compliance with the requirements
in this section and those in the settlement agreement pertaining to Oster v. Lightbourne, N.D.
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3/27/2013

Cal., Case No. CV 09-04668 CW, U.S. Court of Appeals for the Ninth Circuit, Case No. 1215366; and Dominguez v. Brown, N.D. Cal., Case No. CV 09-02306 CW, U.S. Court of Appeals
for the Ninth Circuit, Case No. 09-16359. At least thirty days prior to allocating any funds
pursuant to this section, the Department of Social Services shall provide an expenditure plan to
the Joint Legislative Budget Committee.

SEC. 5. Section 12301.07 of the Welfare and Institutions Code is repealed.
12301.07. (a) (1) Notwithstanding any other provision of law, if
subdivision (b) of Section 3.94 of the Budget Act of 2011 is
operative, the department shall implement a 20-percent reduction in
authorized hours of service to each in-home supportive services
recipient as specified in this section, effective January 1, 2012,
which shall be applied to the recipient's hours as authorized
pursuant to his or her most recent assessment.
(2) The reduction required by this section shall not preclude any
reassessment to which a recipient would otherwise be entitled.
However, hours authorized pursuant to a reassessment shall be subject
to the reduction required by this section.
(3) For those recipients who have a documented unmet need,
excluding protective supervision, because of the limitations
contained in Section 12303.4, this reduction shall be applied first
to the unmet need before being applied to the authorized hours. If
the recipient believes he or she will be at serious risk of
out-of-home placement as a consequence of the reduction, the
recipient may apply for a restoration of the reduction of authorized
service hours, pursuant to subdivision (f).
(4) A recipient of services under this article may direct the
manner in which the reduction of hours is applied to the recipient's
previously authorized services.
(5) The reduction in service hours made pursuant to paragraph (1)
shall not apply to in-home supportive services recipients who also
receive services under Section 9560, subdivision (t) of Section
14132, and Section 14132.99.
(b) The department shall work with the counties to develop a
process to allow for counties to preapprove IHSS Care Supplements
described in subdivision (f), to the extent that the process is
permissible under federal law. The preapproval process shall be
subject to the following conditions:
(1) The preapproval process shall rely on the criteria for
assessing IHSS Care Supplement applications, developed pursuant to
subdivision (f).
(2) Preapproval shall be granted only to individuals who would
otherwise be granted a full restoration of their hours pursuant to
5

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subdivision (f).
(3) With respect to existing recipients as of the effective date
of this section, all efforts shall be made to ensure that counties
complete the process on or before a specific date, as determined by
the department, in consultation with counties in order to allow for
the production, printing, and mailing of notices to be issued to
remaining recipients who are not granted preapproval and who thereby
are subject to the reduction pursuant to this section.
(4) The department shall work with counties to determine how to
apply a preapproval process with respect to new applicants to the
IHSS program who apply after the effective date of this section.
(c) The notice of action informing each recipient who is not
preapproved for an IHSS Care Supplement pursuant to subdivision (b)
shall be mailed at least 15 days prior to the reduction going into
effect. The notice of action shall be understandable to the recipient
and translated into all languages spoken by a substantial number of
the public served by the In-Home Supportive Services program, in
accordance with Section 7295.2 of the Government Code. The notice
shall not contain any recipient financial or confidential identifying
information other than the recipient's name, address, and Case
Management Information and Payroll System (CMIPS) client
identification number, and shall include, but not be limited to, all
of the following information:
(1) The aggregate number of authorized hours before the reduction
pursuant to paragraph (1) of subdivision (a) and the aggregate number
of authorized hours after the reduction.
(2) That the recipient may direct the manner in which the
reduction of authorized hours is applied to the recipient's
previously authorized services.
(3) How all or part of the reduction may be restored, as set forth
in subdivision (f), if the recipient believes he or she will be at
serious risk of out-of-home placement as a consequence of the
reduction.
(d) The department shall inform providers of any reduction to
recipient hours through a statement on provider timesheets, after
consultation with counties.
(e) The IHSS Care Supplement application process described in
subdivision (f) shall be completed before a request for a state
hearing is submitted. If the IHSS Care Supplement application is
filed within 15 days of the notice of action required by subdivision
(c), or before the effective date of the reduction, the recipient
shall be eligible for aid paid pending. A revised notice of action
shall be issued by the county following evaluation of the IHSS Care
Supplement application.
(f) (1) Any aged, blind, or disabled individual who is eligible
for services under this article who receives a notice of action
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indicating that his or her services will be reduced under subdivision
(a) but who believes he or she is at serious risk of out-of-home
placement unless all or part of the reduction is restored may submit
an IHSS Care Supplement application. When a recipient submits an IHSS
Care Supplement application within 15 days of receiving the
reduction notice or prior to the implementation of the reduction, the
recipient's in-home supportive services shall continue at the level
authorized by the most recent assessment, prior to any reduction,
until the county finds that the recipient does or does not require
restoration of any hours through the IHSS Care Supplement. If the
recipient disagrees with the county's determination concerning the
need for the IHSS Care Supplement, the recipient may request a
hearing on that determination.
(2) The department shall develop an assessment tool, in
consultation with stakeholders, to be used by the counties to
determine if a recipient is at serious risk of out-of-home placement
as a consequence of the reduction of services pursuant to this
section. The assessment tool shall be developed utilizing standard of
care criteria for relevant out-of-home placements that serve
individuals who are aged, blind, or who have disabilities and who
would qualify for IHSS if living at home, including, but not limited
to, criteria set forth in Chapter 7.0 of the Manual of Criteria for
Medi-Cal Authorization published by the State Department of Health
Care Services, as amended April 15, 2004, and the IHSS uniform
assessment guidelines.
(3) Counties shall give a high priority to prompt screening of
persons specified in this section to determine their need for an IHSS
Care Supplement.
(g) (1) Notwithstanding the rulemaking provisions of the
Administrative Procedure Act (Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code),
the department may implement and administer this section through
all-county letters or similar instruction from the department until
regulations are adopted. The department shall adopt emergency
regulations implementing this section no later than March 1, 2013.
The department may readopt any emergency regulation authorized by
this section that is the same as or substantially equivalent to an
emergency regulation previously adopted under this section.
(2) The initial adoption of emergency regulations implementing
this section and one readoption of emergency regulations authorized
by this subdivision shall be deemed an emergency and necessary for
the immediate preservation of the public peace, health, safety, or
general welfare. Initial emergency regulations and the one readoption
of emergency regulations authorized by this section shall be exempt
from review by the Office of Administrative Law. The initial
emergency regulations and the one readoption of emergency regulations
7

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authorized by this section shall be submitted to the Office of
Administrative Law for filing with the Secretary of State and each
shall remain in effect for no more than 180 days, by which time final
regulations may be adopted.
(h) If the Director of Health Care Services determines that
federal approval is necessary to implement this section, this section
shall be implemented only after any state plan amendments required
pursuant to Section 14132.95 are approved.

8

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Operative if CCI is Operative
SEC. 6. Section 12306.1 of the Welfare and Institutions Code is amended to read:
12306.1. (a) When any increase in provider wages or benefits is
negotiated or agreed to by a public authority or nonprofit consortium
under Section 12301.6, then the county shall use county-only funds
to fund both the county share and the state share, including
employment taxes, of any increase in the cost of the program, unless
otherwise provided for in the annual Budget Act or appropriated by
statute. No increase in wages or benefits negotiated or agreed to
pursuant to this section shall take effect unless and until, prior to
its implementation, the department has obtained the approval of the
State Department of Health Care Services for the increase pursuant to
a determination that it is consistent with federal law and to ensure
federal financial participation for the services under Title XIX of
the federal Social Security Act, and unless and until all of the
following conditions have been met:
(1) Each county has provided the department with documentation of
the approval of the county board of supervisors of the proposed
public authority or nonprofit consortium rate, including wages and
related expenditures. The documentation shall be received by the
department before the department and the State Department of Health
Care Services may approve the increase.
(2) Each county has met department guidelines and regulatory
requirements as a condition of receiving state participation in the
rate.
(b) Any rate approved pursuant to subdivision (a) shall take
effect commencing on the first day of the month subsequent to the
month in which final approval is received from the department. The
department may grant approval on a conditional basis, subject to the
availability of funding.
(c) The state shall pay 65 percent, and each county shall pay 35
percent, of the nonfederal share of wage and benefit increases
negotiated by a public authority or nonprofit consortium pursuant to
Section 12301.6 and associated employment taxes, only in accordance
with subdivisions (d) to (f), inclusive.
(d) (1) The state shall participate as provided in subdivision (c)
in wages up to seven dollars and fifty cents ($7.50) per hour and
individual health benefits up to sixty cents ($0.60) per hour for all
public authority or nonprofit consortium providers. This paragraph
shall be operative for the 2000-01 fiscal year and each year
thereafter unless otherwise provided in paragraphs (2), (3), (4), and
(5), and without regard to when the wage and benefit increase
becomes effective.
(2) The state shall participate as provided in subdivision (c) in
9

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a total of wages and individual health benefits up to nine dollars
and ten cents ($9.10) per hour, if wages have reached at least seven
dollars and fifty cents ($7.50) per hour. Counties shall determine,
pursuant to the collective bargaining process provided for in
subdivision (c) of Section 12301.6, what portion of the nine dollars
and ten cents ($9.10) per hour shall be used to fund wage increases
above seven dollars and fifty cents ($7.50) per hour or individual
health benefit increases, or both. This paragraph shall be operative
for the 2001-02 fiscal year and each fiscal year thereafter, unless
otherwise provided in paragraphs (3), (4), and (5).
(3) The state shall participate as provided in subdivision (c) in
a total of wages and individual health benefits up to ten dollars and
ten cents ($10.10) per hour, if wages have reached at least seven
dollars and fifty cents ($7.50) per hour. Counties shall determine,
pursuant to the collective bargaining process provided for in
subdivision (c) of Section 12301.6, what portion of the ten dollars
and ten cents ($10.10) per hour shall be used to fund wage increases
above seven dollars and fifty cents ($7.50) per hour or individual
health benefit increases, or both. This paragraph shall be operative
commencing with the next state fiscal year for which the May Revision
forecast of General Fund revenue, excluding transfers, exceeds by at
least 5 percent, the most current estimate of revenue, excluding
transfers, for the year in which paragraph (2) became operative.
(4) The state shall participate as provided in subdivision (c) in
a total of wages and individual health benefits up to eleven dollars
and ten cents ($11.10) per hour, if wages have reached at least seven
dollars and fifty cents ($7.50) per hour. Counties shall determine,
pursuant to the collective bargaining process provided for in
subdivision (c) of Section 12301.6, what portion of the eleven
dollars and ten cents ($11.10) per hour shall be used to fund wage
increases or individual health benefits, or both. This paragraph
shall be operative commencing with the next state fiscal year for
which the May Revision forecast of General Fund revenue, excluding
transfers, exceeds by at least 5 percent, the most current estimate
of revenues, excluding transfers, for the year in which paragraph (3)
became operative.
(5) The state shall participate as provided in subdivision (c) in
a total cost of wages and individual health benefits up to twelve
dollars and ten cents ($12.10) per hour, if wages have reached at
least seven dollars and fifty cents ($7.50) per hour. Counties shall
determine, pursuant to the collective bargaining process provided for
in subdivision (c) of Section 12301.6, what portion of the twelve
dollars and ten cents ($12.10) per hour shall be used to fund wage
increases above seven dollars and fifty cents ($7.50) per hour or
individual health benefit increases, or both. This paragraph shall be
operative commencing with the next state fiscal year for which the
10

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May Revision forecast of General Fund revenue, excluding transfers,
exceeds by at least 5 percent, the most current estimate of revenues,
excluding transfers, for the year in which paragraph (4) became
operative.
(6) Notwithstanding paragraphs (2) to (5), inclusive, the state
shall participate as provided in subdivision (c) in a total cost of
wages up to nine dollars and fifty cents ($9.50) per hour and in
individual health benefits up to sixty cents ($0.60) per hour. This
paragraph shall become operative on July 1, 2009.
(7) (A) The Legislature finds and declares that injunctions issued
by the courts have prevented the state from implementing the changes
described in paragraph (6) during the pendency of litigation. To
avoid confusion for providers, recipients, and other stakeholders, it
is therefore the intent of the Legislature to temporarily suspend
the reductions described in that paragraph until July 1, 2012, to
allow the litigation to reach a final result.
(B) Paragraph (6) shall not be implemented until July 1, 2012, and
as of that date shall only be implemented if a court of competent
jurisdiction has issued an order, that is not subject to appeal or
for which the time to appeal has expired, upholding its validity.
(e) (1) On or before May 14 immediately prior to the fiscal year
for which state participation is provided under paragraphs (2) to
(5), inclusive, of subdivision (d), the Director of Finance shall
certify to the Governor, the appropriate committees of the
Legislature, and the department that the condition for each
subdivision to become operative has been met.
(2) For purposes of certifications under paragraph (1), the
General Fund revenue forecast, excluding transfers, that is used for
the relevant fiscal year shall be calculated in a manner that is
consistent with the definition of General Fund revenues, excluding
transfers, that was used by the Department of Finance in the 2000-01
Governor's Budget revenue forecast as reflected on Schedule 8 of the
Governor's Budget.
(f) Any increase in overall state participation in wage and
benefit increases under paragraphs (2) to (5), inclusive, of
subdivision (d), shall be limited to a wage and benefit increase of
one dollar ($1) per hour with respect to any fiscal year. With
respect to actual changes in specific wages and health benefits
negotiated through the collective bargaining process, the state shall
participate in the costs, as approved in subdivision (c), up to the
maximum levels as provided under paragraphs (2) to (5)(6), inclusive, of
subdivision (d).
(g) For the period during which Section 12306.15 is operative,
each county's share of the costs of negotiated wage and benefit
increases specified in subdivision (c) shall remain, but the County
IHSS Maintenance of Effort pursuant to Section 12306.15 shall be in
11

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lieu of that share.
(h) This section shall become inoperative only if Chapter 45 of
the Statutes of 2012 is deemed inoperative pursuant to Section 15 of
that chapter.

12

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Operative if CCI is Inoperative
SEC. 7. Section 12306.1 of the Welfare and Institutions Code is amended to read:
12306.1. (a) When any increase in provider wages or benefits is
negotiated or agreed to by a public authority or nonprofit consortium
under Section 12301.6, then the county shall use county-only funds
to fund both the county share and the state share, including
employment taxes, of any increase in the cost of the program, unless
otherwise provided for in the annual Budget Act or appropriated by
statute. No increase in wages or benefits negotiated or agreed to
pursuant to this section shall take effect unless and until, prior to
its implementation, the department has obtained the approval of the
State Department of Health Care Services for the increase pursuant to
a determination that it is consistent with federal law and to ensure
federal financial participation for the services under Title XIX of
the federal Social Security Act, and unless and until all of the
following conditions have been met:
(1) Each county has provided the department with documentation of
the approval of the county board of supervisors of the proposed
public authority or nonprofit consortium rate, including wages and
related expenditures. The documentation shall be received by the
department before the department and the State Department of Health
Care Services may approve the increase.
(2) Each county has met department guidelines and regulatory
requirements as a condition of receiving state participation in the
rate.
(b) Any rate approved pursuant to subdivision (a) shall take
effect commencing on the first day of the month subsequent to the
month in which final approval is received from the department. The
department may grant approval on a conditional basis, subject to the
availability of funding.
(c) The state shall pay 65 percent, and each county shall pay 35
percent, of the nonfederal share of wage and benefit increases
negotiated by a public authority or nonprofit consortium pursuant to
Section 12301.6 and associated employment taxes, only in accordance
with subdivisions (d) to (f), inclusive.
(d) (1) The state shall participate as provided in subdivision (c)
in wages up to seven dollars and fifty cents ($7.50) per hour and
individual health benefits up to sixty cents ($0.60) per hour for all
public authority or nonprofit consortium providers. This paragraph
shall be operative for the 2000-01 fiscal year and each year
thereafter unless otherwise provided in paragraphs (2), (3), (4), and
(5), and without regard to when the wage and benefit increase
becomes effective.
(2) The state shall participate as provided in subdivision (c) in
13

3/27/2013

a total of wages and individual health benefits up to nine dollars
and ten cents ($9.10) per hour, if wages have reached at least seven
dollars and fifty cents ($7.50) per hour. Counties shall determine,
pursuant to the collective bargaining process provided for in
subdivision (c) of Section 12301.6, what portion of the nine dollars
and ten cents ($9.10) per hour shall be used to fund wage increases
above seven dollars and fifty cents ($7.50) per hour or individual
health benefit increases, or both. This paragraph shall be operative
for the 2001-02 fiscal year and each fiscal year thereafter, unless
otherwise provided in paragraphs (3), (4), and (5).
(3) The state shall participate as provided in subdivision (c) in
a total of wages and individual health benefits up to ten dollars and
ten cents ($10.10) per hour, if wages have reached at least seven
dollars and fifty cents ($7.50) per hour. Counties shall determine,
pursuant to the collective bargaining process provided for in
subdivision (c) of Section 12301.6, what portion of the ten dollars
and ten cents ($10.10) per hour shall be used to fund wage increases
above seven dollars and fifty cents ($7.50) per hour or individual
health benefit increases, or both. This paragraph shall be operative
commencing with the next state fiscal year for which the May Revision
forecast of General Fund revenue, excluding transfers, exceeds by at
least 5 percent, the most current estimate of revenue, excluding
transfers, for the year in which paragraph (2) became operative.
(4) The state shall participate as provided in subdivision (c) in
a total of wages and individual health benefits up to eleven dollars
and ten cents ($11.10) per hour, if wages have reached at least seven
dollars and fifty cents ($7.50) per hour. Counties shall determine,
pursuant to the collective bargaining process provided for in
subdivision (c) of Section 12301.6, what portion of the eleven
dollars and ten cents ($11.10) per hour shall be used to fund wage
increases or individual health benefits, or both. This paragraph
shall be operative commencing with the next state fiscal year for
which the May Revision forecast of General Fund revenue, excluding
transfers, exceeds by at least 5 percent, the most current estimate
of revenues, excluding transfers, for the year in which paragraph (3)
became operative.
(5) The state shall participate as provided in subdivision (c) in
a total cost of wages and individual health benefits up to twelve
dollars and ten cents ($12.10) per hour, if wages have reached at
least seven dollars and fifty cents ($7.50) per hour. Counties shall
determine, pursuant to the collective bargaining process provided for
in subdivision (c) of Section 12301.6, what portion of the twelve
dollars and ten cents ($12.10) per hour shall be used to fund wage
increases above seven dollars and fifty cents ($7.50) per hour or
individual health benefit increases, or both. This paragraph shall be
operative commencing with the next state fiscal year for which the
14

3/27/2013

May Revision forecast of General Fund revenue, excluding transfers,
exceeds by at least 5 percent, the most current estimate of revenues,
excluding transfers, for the year in which paragraph (4) became
operative.
(6) Notwithstanding paragraphs (2) to (5), inclusive, the state
shall participate as provided in subdivision (c) in a total cost of
wages up to nine dollars and fifty cents ($9.50) per hour and in
individual health benefits up to sixty cents ($0.60) per hour. This
paragraph shall become operative on July 1, 2009.
(7) (A) The Legislature finds and declares that injunctions issued
by the courts have prevented the state from implementing the changes
described in paragraph (6) during the pendency of litigation. To
avoid confusion for providers, recipients, and other stakeholders, it
is therefore the intent of the Legislature to temporarily suspend
the reductions described in that paragraph until July 1, 2012, to
allow the litigation to reach a final result.
(B) Paragraph (6) shall not be implemented until July 1, 2012, and
as of that date shall only be implemented if a court of competent
jurisdiction has issued an order, that is not subject to appeal or
for which the time to appeal has expired, upholding its validity.
(e) (1) On or before May 14 immediately prior to the fiscal year
for which state participation is provided under paragraphs (2) to
(5), inclusive, of subdivision (d), the Director of Finance shall
certify to the Governor, the appropriate committees of the
Legislature, and the department that the condition for each
subdivision to become operative has been met.
(2) For purposes of certifications under paragraph (1), the
General Fund revenue forecast, excluding transfers, that is used for
the relevant fiscal year shall be calculated in a manner that is
consistent with the definition of General Fund revenues, excluding
transfers, that was used by the Department of Finance in the 2000-01
Governor's Budget revenue forecast as reflected on Schedule 8 of the
Governor's Budget.
(f) Any increase in overall state participation in wage and
benefit increases under paragraphs (2) to (5), inclusive, of
subdivision (d), shall be limited to a wage and benefit increase of
one dollar ($1) per hour with respect to any fiscal year. With
respect to actual changes in specific wages and health benefits
negotiated through the collective bargaining process, the state shall
participate in the costs, as approved in subdivision (c), up to the
maximum levels as provided under paragraphs (2) to (5)(6), inclusive, of
subdivision (d).
(g) This section shall become operative only if Chapter 45 of the
Statutes of 2012 is deemed inoperative pursuant to Section 15 of that
chapter.

15

3/27/2013

SEC.8. Section 12309 of the Welfare and Institutions Code is amended to read:
12309. (a) In order to assure that in-home supportive services are
delivered in all counties in a uniform manner, the department shall
develop a uniform needs assessment tool.
(b) (1) Each county shall, in administering this article, use the
uniform needs assessment tool developed pursuant to subdivision (a)
in collecting and evaluating information.
(2) For purposes of paragraph (1), "information" includes, but is
not limited to, all of the following:
(A) The recipient's living environment.
(B) Alternative resources.
(C) The recipient's functional abilities.
(c) (1) The uniform needs assessment tool developed pursuant to
subdivision (a) shall evaluate the recipient's functioning in
activities of daily living and instrumental activities of daily
living.
(2) The recipient's functioning shall be quantified, using the
general hierarchical five-point scale for ranking each function, as
specified in subdivision (d).
(d) The recipient's functioning ranks shall be as follows:
(1) Rank one. A recipient's functioning shall be classified as
rank one if his or her functioning is independent, and he or she is
able to perform the function without human assistance, although the
recipient may have difficulty in performing the function, but the
completion of the function, with or without a device or mobility aid,
poses no substantial risk to his or her safety.
(2) Rank two. A recipient's functioning shall be classified as
rank two if he or she is able to perform a function, but needs verbal
assistance, such as reminding, guidance, or encouragement.
(3) Rank three. A recipient's functioning shall be classified as
rank three if he or she can perform the function with some human
assistance, including, but not limited to, direct physical assistance
from a provider.
(4) Rank four. A recipient's functioning shall be classified as
rank four if he or she can perform a function, but only with
substantial human assistance.
(5) Rank five. A recipient's functioning shall be classified as
rank five if he or she cannot perform the function, with or without
human assistance.
(e) (1) Notwithstanding any other law, and effective September 1,
2009, individuals shall be eligible for each domestic or related
service only if assessed at a rank four or five, as defined in
subdivision (d), in the activity of daily living relating to that
service. The activities of daily living that relate to domestic and
related services are defined in regulations and include housework,
16

3/27/2013

laundry, shopping and errands, meal preparation, and meal cleanup.
The rank for each domestic and related service shall be determined
based on an assessment of need for supportive services by the county,
in accordance with this section and the hourly task guidelines as
defined by Section 12301.2. This paragraph does not apply to
individuals meeting one of the conditions specified in paragraph (2).
(2) Paragraph (1) shall not apply to individuals authorized to
receive either protective supervision pursuant to subdivision (b) of
Section 12300 and Section 12301.21 or paramedical services pursuant
to Section 12300.1, or to individuals authorized to receive over 120
hours of services per month.
(3) To the extent necessary to maintain federal financial
participation, the director may waive any or all of the provisions of
paragraph (2), after consultation with the State Department of
Health Care Services.
(f) A recipient shall be assigned a functional index score. The
functional index score for a recipient shall be a weighted average
based on the individual functional index rankings, as described in
subdivision (d), to provide a single measure of a recipient's
relative dependence on human assistance for performance of activities
of daily living that are used in the assessment of services provided
pursuant to this article.
(g) (1) Notwithstanding the rulemaking provisions of the
Administrative Procedure Act (Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code) the
department may implement and administer this section through
all-county letters or similar instruction from the department until
regulations are adopted. The department shall adopt emergency
regulations implementing this section no later than July 1, 2010. The
department may readopt any emergency regulation authorized by this
section that is the same as or substantially equivalent to an
emergency regulation previously adopted under this section.
(2) The initial adoption of emergency regulations implementing
this section and one readoption of emergency regulations shall be
deemed an emergency and necessary for the immediate preservation of
the public peace, health, safety, or general welfare. Initial
emergency regulations and the one readoption of emergency regulations
authorized by this subdivision shall be exempt from review and
approval by the Office of Administrative Law. The initial emergency
regulations and the one readoption of emergency regulations
authorized by this subdivision shall be submitted to the Office of
Administrative Law for filing with the Secretary of State and each
shall remain in effect for no more than 180 days, by which time final
regulations may be adopted.
(h) Subdivisions (e), (f), and (g) shall become operative on
September 1, 2009.
17

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(i) (1) The Legislature finds and declares that injunctions
issued by the courts have prevented the state from implementing the
changes described in subdivisions (e), (f), and (g) during the
pendency of litigation. To avoid confusion for providers, recipients,
and other stakeholders, it is therefore the intent of the
Legislature to temporarily suspend the reductions described in those
subdivisions until July 1, 2012, to allow the litigation to reach a
final result.
(2) Notwithstanding subdivision (h) or any other provision of law,
subdivisions (e), (f), and (g) shall not be implemented until July
1, 2012, and as by that date shall only be implemented if a court of
competent jurisdiction has issued an order, that is not subject to
appeal or for which the time to appeal has expired, upholding their
validity.

18

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SEC. 9. Section 12309.2 of the Welfare and Institutions Code is repealed:
12309.2. (a) Notwithstanding any other law, except as provided in
subdivision (b), and pursuant to subdivision (e) of Section 12309,
and effective September 1, 2009, eligibility for in-home supportive
services provided pursuant to Article 7 (commencing with Section
12300) of Chapter 3 shall also include functional index scores
calculated pursuant to subdivision (f) of Section 12309, as follows:
(1) Individuals with a functional index score of 2.0 and above
shall be eligible to receive all appropriate in-home supportive
services provided pursuant to this article.
(2) Individuals with a functional index score below 2.0 shall not
be eligible for any in-home supportive services provided pursuant to
this article.
(3) Paragraph (2) shall not apply to individuals authorized to
receive protective supervision pursuant to subdivision (b) of Section
12300 and Section 12301.21 or paramedical services pursuant to
Section 12300.1, or to individuals authorized to receive over 120
hours of services per month pursuant to Section 12301.2.
(4) To the extent necessary to maintain federal financial
participation, the director may waive any or all of the provisions of
paragraph (3), after consultation with the State Department of
Health Care Services.
(b) The department shall modify the notice of action forms to
inform individuals whose hours are reduced or for whom eligibility is
eliminated by the changes made to Section 12309 or this section by
the act adding this section of their functional rank and functional
index score. The form shall be modified no later than September 1,
2009.
(c) (1) Notwithstanding the rulemaking provisions of the
Administrative Procedure Act, Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code, the
department may implement and administer this section through
all-county letters or similar instruction from the department until
regulations are adopted. The department shall adopt emergency
regulations implementing this section no later than July 1, 2010. The
department may readopt any emergency regulation authorized by this
section that is the same as or substantially equivalent to an
emergency regulation previously adopted under this section.
(2) The initial adoption of emergency regulations implementing
this section and the one readoption of emergency regulations
authorized by this subdivision shall be deemed an emergency and
necessary for the immediate preservation of the public peace, health,
safety, or general welfare. Initial emergency regulations and the
one readoption of emergency regulations authorized by this section
shall be exempt from review and approval by the Office of
19

3/27/2013

Administrative Law. The initial emergency regulations and the one
readoption of emergency regulations authorized by this section shall
be submitted to the Office of Administrative Law for filing with the
Secretary of State and each shall remain in effect for no more than
180 days, by which time final regulations may be adopted.
(d) This section shall become operative on September 1, 2009.
(e) (1) The Legislature finds and declares that injunctions issued
by the courts have prevented the state from implementing the changes
described in this section during the pendency of litigation. To
avoid confusion for providers, recipients, and other stakeholders, it
is therefore the intent of the Legislature to temporarily suspend
the reductions described in this section until July 1, 2012, to allow
the litigation to reach a final result.
(2) Notwithstanding subdivision (d) or any other provision of law,
this section shall not be implemented until July 1, 2012, and as of
that date shall only be implemented if a court of competent
jurisdiction has issued an order, that is not subject to appeal or
for which the time to appeal has expired, upholding its validity.
SEC. 10. Notwithstanding Chapter 3.5 (commencing with Section 11340) of Part 1 of Division
3 of Title 2 of the Government Code, the Department of Health Care Services and the
Department of Social Services, without taking any further regulatory action, shall implement,
interpret, or make specific this act by means of all-county letters, plan letters, plan or provider
bulletins, or similar instructions.

20

EXHIBIT B

Proposed Schedule re Court Approval of Settlement and Implementation of 8% Reduction1
July 1

Implementation of 8% reduction

June 10

Notices (NOA) to IHSS Recipients re 8% reduction begin to roll out May 23
Hearing re Final Approval of Settlement (sooner if court will agree)

May 10

Parties to respond to objections; Plaintiffs to file Motion for Final Approval

May 9

Deadline for finalizing NOA [Draft NOA to be circulated to plaintiffs sometime
in April]

May 9

Deadline for finalizing ACL

May 24

Legislation re 8% reduction from July 1, 2013-June 30, 2014; 7% reduction July
1, 2014-ongoing subject to trigger (necessary to provide recipients with notice by
June 20); repeal of challenged statutes

May 3

Objections due

April 5

Notice to Class

April 4

Hearing re Motion for Preliminary Approval

March 28

File Motion for Preliminary Approval

1

Presuming not individual notice.

EXHIBIT C

NOTICE OF IHSS CLASS ACTION SETTLEMENTS
This notice is about the proposed settlements of two class action lawsuits.
It is about In-Home Supportive Services (IHSS).
ABOUT THE LAWSUITS
In 2009, the State of California passed a law to stop all IHSS services to
about 30,000 people. The law would have cut hours for help with meals,
house cleaning and other home care to another 100,000 people. In 2011,
the state passed another law to cut IHSS hours by 20% for many more
people. (Some recipients might have been able to get their hours back if
they could prove they were at serious risk of out of home placement.)
David Oster and other IHSS recipients, as well as labor unions for IHSS
workers, filed a lawsuit about these cuts in IHSS hours. The defendants
are state officials. The lawsuit is called Oster.
In 2009, the State also passed a law to cut funding when an IHSS worker
makes more than $9.50 per hour.
IHSS recipients and labor unions for IHSS workers filed a lawsuit about the
wage cuts. The defendants are state officials. The lawsuit is called
Dominguez.
A court in Oakland temporarily stopped the cuts in both cases in 2009 and
2011. The State asked higher courts to let it go ahead with the IHSS cuts.
No one can tell how the higher courts might rule. No one can tell if the
court in Oakland would stop the cuts forever.
ABOUT THE SETTLEMENTS
The state has agreed to get rid of the IHSS cuts from 2009 and 2011.
These cuts will never go into effect.
There will be no 20% cut in IHSS hours. There will be a one-year cut
of 8% starting around July 1, 2013. This is a cut of 4.4% below
current hours because there is already a cut of 3.6% that is not part
of these lawsuits. (3.6% + 4.4% = 8%).
1

Around July 2014 the cut in IHSS hours go down to 7%. This is a cut
of 3.4% on top of the 3.6% current cut.
You can ask the county for extra hours if your circumstances change.
There will be no cuts in State funding for IHSS wages.
The State agreed to ask the federal government for extra money for the
IHSS program from a new assessment. The State could end the 7% cut as
early as 2015 if this is allowed.
These are class action lawsuits. You are a class member in the Oster case
if you would have gotten a notice of action about IHSS cuts in 2009 or
2011. You are a class member in the Dominguez case if you get IHSS and
live in any of these counties:
Alameda.
Los Angeles.
Mendocino.
Riverside.
San Joaquin.
Santa Clara.
Yolo.

Calaveras.
Madera.
Monterey.
Sacramento.
San Luis Obispo.
Santa Cruz.
Yuba.

Contra Costa.
Marin.
Napa.
San Benito.
San Mateo.
Solano.

Fresno.
Mariposa.
Placer.
San Francisco.
Santa Barbara.
Sonoma.

As part of the settlements, class members in the two cases cannot file a
lawsuit about the 8% or 7% cuts.
IF YOU WANT MORE DETAILS:
There are different sets of lawyers representing IHSS class members in the
Oster case and in the Dominguez case. Together they are called the IHSS
Settlement Lawyers. You can get a list of these lawyers, a copy of the
settlement agreement and more details about the settlements from your
county welfare office. You can also get details from your county public
authority. You can also get details from these websites:
www.disabilityrightsca.org, www.altshulerberzon.com, www.DHCS.gov,
and www.CDSS.gov.

2

To ask questions about the settlements or this notice, you can:
(1) Leave a message for the IHSS Settlement Lawyers at 1-800XXXXXXX.
(2) Send a letter to the IHSS Settlement Lawyers at P.O. Box XXX, City of
XXXXX, CA 900XX.
(3) Send an email to: [e-mail].
IF YOU DO NOT OBJECT TO THE SETTLEMENTS:
You do not have to do anything.
IF YOU OBJECT TO THE SETTLEMENTS:
You must mail a statement about why you object to the settlements. The
deadline is May 3, 2013. Mail your objection to both:
1. Gregory Brown, Office of the Attorney General, 455 Golden Gate
Avenue 11th Floor, San Francisco, California 94102
2. IHSS Settlement Lawyers, PO Box XXX, City of XXXXX, CA 900XX.
You must mail your objection by the deadline. You cannot object to these
settlements later.
The court in Oakland will also hold a hearing about the settlements at XXX
pm on May 24, 2013. The address for the court is
U.S. Federal District Court, Courtroom 2
1301 Clay Street, 4th Floor
Oakland California 94612
You can get more details about the hearing from the places listed above.

3

NOTICE ABOUT IN-HOME SUPPORTIVE SERVICES (IHSS)

Settlement of IHSS lawsuits
In 2009, the State of California tried to cut IHSS domestic
and related hours. In 2011, the State tried to cut IHSS hours by
20%. In 2009, the State tried to cut funds for IHSS workers who
make more than $9.50 an hour.
IHSS recipients and labor unions filed lawsuits. They won
temporary orders stopping the cuts. The State appealed the
lawsuits. No one knows if the courts would allow the cuts or not.
Now there is a settlement. If the court approves the settlement:
There will be no 20% cut in IHSS hours. There will be a one-year cut
of 8% starting around July 1, 2013. This is 4.4% below current hours
because there is already a cut of 3.6% that is not part of these
lawsuits. (3.6% + 4.4% = 8%).
Around July 2014, the cut in IHSS hours will go down to 7%. (3.4%
on top of the 3.6% current cut).
There will be no cuts in State funding for IHSS wages.
You can ask the county for extra hours if your circumstances change.

TO GET MORE DETAILS OR FILE AN OBJECTION WITH THE
COURT: You can get a copy of the class notice and the
settlement agreement from your county welfare office or public
authority. Also, you can get details at these websites:
www.disabilityrightsca.org, www.altshulerberzon.com,
www.DHCS.gov, and www.CDSS.gov.
You can also leave a message for the lawyers representing IHSS recipients
at 1-800-XXXXXXX.
THE DEADLINE TO OBJECT TO THE SETTLEMENT IS MAY 3, 2013.
You don’t have to do anything if you do not object to the settlement.

OSTER/DOMINGUEZ SETTLEMENT
PLAN FOR CLASS NOTICE AND TO RESPOND TO OBJECTIONS
A. PLAN FOR CLASS NOTICE
1. The parties have agreed that three documents will be available to inform
IHSS recipients, their family members and those who work with and
assist them. These documents, collectively referred to as “settlement
materials,” are:
a. One page flyer/poster
b. Class notice – 3 pages
1. The one page flyer and three page class notice will be
available in English and 12 other languages. To expedite
the translation process, one of the Union Plaintiffs, SEIUUTLCW, will arrange translations within two days of
approval, subject to reimbursement from state defendants.
2. The class notice and other settlement materials will be
available in alternative formats for IHSS recipients with
visual impairments, per Paragraph 3 below.
c. Settlement Agreement with all exhibits
2. CDSS and CDHCS will post all settlement materials in English within 24
hours of entry of the Order re Preliminary Approval of Class Settlement
in a prominent area of their respective websites. The class notice and
flyer will be posted in remaining languages as soon as these are
translated and available.
3. Disability Rights California will post the settlement materials on its web
site in a format that is accessible to recipients with visual impairments or
who are blind who use screen readers, and upon request, will provide
the notice in alternative formats, such as audio tapes, compact disks,
and large print. Disability Rights California and at least some other class
counsel will also post all of the settlement materials on their respective
web sites.
1

4. Union Plaintiffs SEIU State Council, SEIU-ULTCW, SEIU - United Health
Workers West and United Domestic Workers, AFSCME, will post
information regarding the settlement and the settlement materials (or a
link to them) on their respective websites.
5. CDSS will distribute the settlement materials (or a link to them) to each
county welfare department and will request that:
a. The flyer and notice be displayed in prominent locations in each
county welfare office waiting room and public area in English and
Spanish;
b. The flyer and notice be displayed in prominent locations in
additional primary languages prevalent in the regional area (if
such languages are among the 12 languages in which the flyer
and notice are translated);
c. The settlement agreement and class notice in the remainder of
languages be available upon request from the office receptionist.
6. CDSS will distribute the settlement materials (or a link to them) to state
employees in the State Hearing Division with instructions that the flyer
and notice be displayed in prominent locations in each State Hearing
Division office and waiting room.
7. CDSS or CDHCS will distribute the settlement materials (or a link to
them) to the following organizations with a request to (a) post the flyer
and notice on their website, if they have one, (b) post the flyer and
notice in prominent locations in the organization’s common area or
waiting room, (c) provide the notice individually to any participant whom
they have reason to believe may be receiving IHSS:
a. Providers of Community-Based Adult Services (“CBAS”),
b. IHSS Public Authorities,
c. County IHSS Advisory Committees,
d. County Adult Protective Services programs

2

8. CDSS shall make a request to the following state boards, committees
and councils, requesting that these state organizations (a) post the flyer
and class notice on the state organization’s web page and at its offices,
and (b) email the notice (or a link to it) to its distribution or membership
list, if any.
a. California State Independent Living Organization,
http://www.calsilc.org/
b. California Olmstead Advisory Committee,
http://www.chhs.ca.gov/initiatives/Olmstead/
c. State Council on Developmental Disabilities,
http://www.scdd.ca.gov/
9. Class counsel will make a request to the California Council for the Blind,
to (a) post the flyer and 3 page notice at prominent locations at its
annual statewide conference and convention in Sacramento on April 1113, 2013, (b) email the notice (or a link to it) to its distribution list; and (c)
post the notice and flyer on the organization’s website.
10. Class counsel will arrange to post the notice and flyer on the
Benchmark Institute’s list serve in California, which includes more than
300 legal services attorneys, paralegals and other advocates for public
benefits recipients, including recipients of IHSS.
11. Class counsel will arrange to post the notice and flyer on the Health
Consumer Action list serve in California, which includes more than 400
attorneys and health advocates, including those assisting recipients of
IHSS.
12. Class counsel will arrange to post the notice and flyer on the National
Senior Citizens Law Center’s California Health Network list serve, which
includes more than 1,000 legal services attorneys, health and IHSS
advocates, private attorneys, health care providers, aging services
providers, community based organizations serving limited English
proficient individuals, and other interested individuals and organizations.
3

13. Class counsel has made arrangements to distribute information about
the class notice through the California Disability Community Action
Network (“CDCAN”). CDCAN’s email reports go out to over 65,000
people with disabilities, mental health needs, seniors, people with
traumatic brain and other injuries, people with MS, Alzheimer's and
other disorders, veterans with disabilities and mental health needs,
families, workers, community organizations, facilities and advocacy
groups including those in the Asian/Pacific Islander, Latino, American
Indian, Indian, African-American communities; policymakers, and others
across the State.
14. Class counsel will make arrangements to publicize the class
settlement with the following organizations, including requesting them to
post the notice and flyer on their website and to distribute these
materials to their list serves, and also requesting opportunities to speak
to their membership on any scheduled conference call or meeting:
a. California IHSS Consumer Alliance (CICA) (statewide
collaboration of IHSS Public Authority Advisory Committee and
Governing Board members); http://www.cicaihss.org
b. California Association of Public Authorities (CAPA),
http://www.capaihss.org
c. California Collaborative for Long Term Services and Supports,
which has more than 40 member organizations and is a project of
the Government Action and Communication Institute ,
http://www.gacinstitute.org/ccltss-members.php
d. IHSS Coalition, http://www.ihsscoalition.org/
e. California Foundation of Independent Living Centers,
http://www.cfilc.org
f. People First of California, http://www.peoplefirstca.org/
g. California Network of Mental Health Clients
h. Alzheimer’s Association, California Council, http://caalz.org/
i. California Association for Health Services at Home
j. California Association of Social Rehabilitation Agencies (CASRA)
k. The ARC of California
l. AARP
4

m. Legal Aid Association of California – Senior Legal Services
Provider Section
n. California Association of Area Agencies on Aging
o. California Health Advocates - Health Insurance Counseling and
Advocacy Programs (HICAP)
B. PLAN FOR RESPONSE TO OBJECTIONS AND
REQUESTS FOR INFORMATION
1. Class counsel will set up (a) a toll-free telephone number to accept
messages, (b) a post office box (or other mailing address) to which
letters from IHSS recipients may be sent and (c) an email address for
IHSS recipients to make inquires and request additional information
about the settlement. These options for communicating with Class
counsel will be described in the Class notice and available during the
period for submitting objections and for one week after the date of the
fairness hearing. Class counsel will review and log all
communications from IHSS recipients.
2. In responding to communications from IHSS recipients, Class
counsel will first identify objections, which will be logged and shared
with counsel for Defendants. At the close of the objection period, the
parties will confer, categorize the objections and provide the Court
with a joint report summarizing all objections. Counsel will also
respond to objections after the deadline by informing them that the
time period has ended but providing additional information if
requested.
3. Class counsel will next identify requests for additional information.
These will also be logged and provided with an appropriate response,
which might be to provide a copy of the notice in alternative
languages or formats, to mail the settlement agreement, or to answer
any specific questions that are not addressed in the Settlement
materials. Class counsel will maintain a log of these inquiries and the
5

response provided and will be prepared to provide this to the court in
camera if requested.
4. Class counsel will next identify complaints and questions that are
unrelated to the settlement. If these relate to areas in which Class
counsel can provide assistance, the inquiry will be referred to intake
staff for the respective program. If it is not an area in which class
counsel can assist, the individual will be sent a communication
(telephone call, letter or email), stating that Class counsel cannot
assist and, if possible, offering a referral to other assistance such as
the county bar association or the local legal aid program. Class
counsel will maintain a log of these inquiries and the response
provided and will be prepared to provide this to the court in camera if
requested.

6

EXHIBIT D

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO/OAKLAND DIVISION

10
)
)
)
)
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
)
DAVID OSTER, et al.,
11
12
13
14
15
16
17
18

Case No.: CV 09-04668 CW
[PROPOSED] ORDER GRANTING
FINAL APPROVAL OF CLASS
SETTLEMENT
Date:
Time:
Courtroom:

19
20
21

Plaintiffs DAVID OSTER, WILLIE BEATRICE SHEPPARD, C.R. by and through his

22

guardian ad litem M.R., DOTTIE JONES, ANDREA HYLTON, HELEN POLLY STERN,

23

CHARLES THURMAN, and L.C. by and through her guardian ad litem M.G. (collectively

24

“Named Plaintiffs”) have filed, and all parties support, a Motion for Final Approval of Class

25

Settlement (“Motion for Final Approval”). The Class Settlement Agreement, entered into by

26

Named Plaintiffs, Union Plaintiffs (Service Employees International Union-United Healthcare

27

Workers, Service Employees International Union-United Long Term Care Workers, Service

28
1
[Proposed] Order Granting Final Approval of Class Settlement,
Case No. CV 09-04668 CW

1

Employees International Union Local 521, Service Employees International Union California

2

State Council, United Domestic Workers of America, AFSCME Local 3930, AFL-CIO, and

3

California United Homecare Workers), and Defendants, is attached to this order as Exhibit 1.

4

Classes and subclasses in this case have previously been certified under Federal Rule of

5

Civil Procedure 23(b)(2) and need not be amended for purposes of settlement. On ______, 2013,

6

this Court granted preliminary approval to the Class Settlement Agreement and directed notice of

7

the settlement, its terms, and the applicable procedures and schedules. A Fairness Hearing was

8

held on ___________, 2013 to determine whether the Class Settlement Agreement should be

9

granted final approval pursuant to Federal Rule of Civil Procedure 23(e) as fair, adequate, and

10

reasonable. Class members were given an opportunity to comment on and object to the Class

11

Settlement Agreement in writing and at that Fairness Hearing.

12

Based on consideration of Plaintiffs’ moving papers, the arguments of counsel, the

13

objections of class members, and the proceedings in this action to date, the Court hereby finds and

14

concludes that:

15

1. The Class Notice distributed to Class Members, pursuant to this Court’s prior order,

16

was accomplished in all material respects and fully met the requirements of Federal

17

Rule of Civil Procedure 23, due process, and any other applicable laws.

18

2. The Class Settlement Agreement is fair, reasonable, and adequate in all respects. The

19

Class Settlement Agreement is reasonably related to the strength of Plaintiffs’ and class

20

members’ claims given the risk, expense, complexity, and duration of further litigation.

21

The Class Settlement Agreement is the result of arms-length negotiations between

22

experienced counsel representing the interests of the Plaintiff Class and Defendants,

23

after thorough factual and legal investigation.

24

3. The Court has reviewed and considered the objections of class members and finds that

25

they do not raise concerns that warrant rejecting the Class Settlement Agreement.

26

IT IS HEREBY ORDERED that:

27
28
2
[Proposed] Order Granting Final Approval of Class Settlement,
Case No. CV 09-04668 CW

1

1. The Court has jurisdiction over the subject matter of this litigation and all matters

2

relating thereto, and over the Plaintiffs and Defendants. Venue is proper in the

3

Northern District of California.

4

2. Pursuant to Federal Rule of Civil Procedure 23(e), this Court grants final approval to

5

the Class Settlement Agreement, incorporates the terms of the Class Settlement

6

Agreement into this order as though fully set forth, and orders all parties to perform all

7

of their obligations thereunder.

8
9
10
11

3. This order and the Class Settlement Agreement are binding against the parties, their
successors in office, and their respective officers, agents, and employees, and all others
acting in concert with them.
4. Plaintiffs are bound by the Class Settlement Agreement not to bring or support any

12

lawsuit challenging any provisions of the Class Settlement Agreement. The Class

13

Settlement Agreement reserves, and does not waive, Plaintiffs’ right to challenge, on

14

any ground including those previously asserted in this case, any of the following acts

15

that may occur after this Agreement is signed: any state reductions in participation in

16

IHSS wages and/or state approval of wage reductions in IHSS wages; any state

17

reductions of IHSS hours, services, or eligibility other than those set forth in the

18

Agreement; and any due process challenge to notices of action or provision of hearing

19

rights in relation to IHSS service reductions, assessments, or reassessments other than

20

those required by this Agreement.

21

5. The Court retains exclusive and continuing jurisdiction over this case, the Named

22

Plaintiffs, the Plaintiff Classes and Subclasses, and Defendants for purposes of

23

supervising and resolving issues relating to administration, implementation, and

24

enforcement of the Class Settlement Agreement; resolving any disputes that may arise

25

regarding the Class Settlement Agreement, its terms, or the enforcement thereof; and

26

fashioning appropriate remedies for any violation of that Class Settlement Agreement.

27

The Court’s jurisdiction shall expire 30 months after the Centers for Medicare and

28
3
[Proposed] Order Granting Final Approval of Class Settlement,
Case No. CV 09-04668 CW

1

Medicaid Services (CMS) acts on the request for approval of the Assessment described

2

in Section VI of the Agreement.

3

6. As set forth in Paragraph 30 of the Class Settlement Agreement, within 30 days of the

4

date that the appeal in this case has been dismissed and the legislation attached as

5

Exhibit A to the Agreement has been enacted, the parties shall file a Joint Notice and

6

Request for Dismissal. At that time, this Court shall dismiss this case and enter final

7

judgment with prejudice pursuant to the terms of the Class Settlement Agreement,

8

while retaining jurisdiction to enforce the Agreement as set forth above.

9

IT IS SO ORDERED:

10
11
12

DATED: May __, 2013

______________________________________
The Honorable Claudia Wilken
United States District Judge

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
[Proposed] Order Granting Final Approval of Class Settlement,
Case No. CV 09-04668 CW

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO/OAKLAND DIVISION

9
10

LYDIA DOMINGUEZ, et al.,
11
Plaintiffs,
12
v.
13
WILL LIGHTBOURNE, et al.,
14
15

)
)
)
)
)
)
)
)
)
)
)

Case No.: C 09-02306 CW
[PROPOSED] ORDER GRANTING
FINAL APPROVAL OF CLASS
SETTLEMENT
Date:
Time:
Courtroom:

16
17
18

Plaintiffs PATSY MILLER, ALEX BROWN, by and through his mother and next friend

19

Lisa Brown, DONNA BROWN, CHLOE LIPTON, by and through her conservator and next

20

friend Julie Weissman-Steinbaugh, HERBERT M. MEYER, LESLIE GORDON, CHARLENE

21

AYERS, WILLER BEATRICE SHEPPARD, ANDY MARTINEZ, and CAROLYN STWEART

22

(collectively “Named Plaintiffs”) have filed, and State Defendants (Will Lightbourne and Toby

23

Douglas) support, a Motion for Final Approval of Class Settlement (“Motion for Final Approval”).

24

The Class Settlement Agreement, entered into by Named Plaintiffs, Union Plaintiffs (Service

25

Employees International Union-United Healthcare Workers, Service Employees International

26

Union-United Long Term Care Workers, Service Employees International Union Local 521,

27

Service Employees International Union California State Council, United Domestic Workers of

28
1
[Proposed] Order Granting Final Approval of Class Settlement,
Case No. C 09-02306 CW

1

America, AFSCME Local 3930, AFL-CIO, and California United Homecare Workers), and State

2

Defendants, is attached to this order as Exhibit 1.

3

Classes and subclasses in this case have previously been certified under Federal Rule of

4

Civil Procedure 23(b)(2) and were amended in the order granting preliminary approval because of

5

changed factual circumstances. On ______, 2013, this Court granted preliminary approval to the

6

Class Settlement Agreement and directed notice of the settlement, its terms, and the applicable

7

procedures and schedules. A Fairness Hearing was held on ___________, 2013 to determine

8

whether the Class Settlement Agreement should be granted final approval pursuant to Federal

9

Rule of Civil Procedure 23(e) as fair, adequate, and reasonable. Class members were given an

10

opportunity to comment on and object to the Class Settlement Agreement in writing and at that

11

Fairness Hearing.

12

Based on consideration of Plaintiffs’ moving papers, the arguments of counsel, the

13

objections of class members, and the proceedings in this action to date, the Court hereby finds and

14

concludes that:

15

1. The Class Notice distributed to Class Members, pursuant to this Court’s prior order,

16

was accomplished in all material respects and fully met the requirements of Federal

17

Rule of Civil Procedure 23, due process, and any other applicable laws.

18

2. The Class Settlement Agreement is fair, reasonable, and adequate in all respects. The

19

Class Settlement Agreement is reasonably related to the strength of Plaintiffs’ and class

20

members’ claims given the risk, expense, complexity, and duration of further litigation.

21

The Class Settlement Agreement is the result of arms-length negotiations between

22

experienced counsel representing the interests of the Plaintiff Class and State

23

Defendants, after thorough factual and legal investigation.

24

3. The Court has reviewed and considered the objections of class members and finds that

25

they do not raise concerns that warrant rejecting the Class Settlement Agreement.

26

IT IS HEREBY ORDERED that:

27
28
2
[Proposed] Order Granting Final Approval of Class Settlement,
Case No. C 09-02306 CW

1

1. The Court has jurisdiction over the subject matter of this litigation and all matters

2

relating thereto, and over the Plaintiffs and Defendants. Venue is proper in the

3

Northern District of California.

4

2. Pursuant to Federal Rule of Civil Procedure 23(e), this Court grants final approval to

5

the Class Settlement Agreement, incorporates the terms of the Class Settlement

6

Agreement into this order as though fully set forth, and orders all parties to that

7

Agreement (“Parties”) to perform all of their obligations thereunder.

8
9
10
11

3. This order and the Class Settlement Agreement are binding against the Parties, their
successors in office, and their respective officers, agents, and employees, and all others
acting in concert with them.
4. Plaintiffs are bound by the Class Settlement Agreement not to bring or support any

12

lawsuit challenging any provisions of the Class Settlement Agreement. The Class

13

Settlement Agreement reserves, and does not waive, Plaintiffs’ right to challenge, on

14

any ground including those previously asserted in this case, any of the following acts

15

that may occur after this Agreement is signed: any state reductions in participation in

16

IHSS wages and/or state approval of wage reductions in IHSS wages; any state

17

reductions of IHSS hours, services, or eligibility other than those set forth in the

18

Agreement; and any due process challenge to notices of action or provision of hearing

19

rights in relation to IHSS service reductions, assessments, or reassessments other than

20

those required by this Agreement.

21

5. The Court retains exclusive and continuing jurisdiction over this case, the Named

22

Plaintiffs, the Plaintiff Classes and Subclasses, and State Defendants for purposes of

23

supervising and resolving issues relating to administration, implementation, and

24

enforcement of the Class Settlement Agreement; resolving any disputes that may arise

25

regarding the Class Settlement Agreement, its terms, or the enforcement thereof; and

26

fashioning appropriate remedies for any violation of that Class Settlement Agreement.

27

The Court’s jurisdiction shall expire 30 months after the Centers for Medicare and

28
3
[Proposed] Order Granting Final Approval of Class Settlement,
Case No. C 09-02306 CW

1

Medicaid Services (CMS) acts on the request for approval of the “Assessment”

2

described in Section VI of the Agreement.

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6. As set forth in Paragraph 30 of the Class Settlement Agreement, within 30 days of the

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date that the appeal in this case has been dismissed and the legislation attached as

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Exhibit A to the Agreement has been enacted, the parties shall file a Joint Notice and

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Request for Dismissal. At that time, this Court shall dismiss this case and enter final

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judgment with prejudice as to State Defendants, pursuant to the terms of the Class

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Settlement Agreement, while retaining jurisdiction to enforce the Agreement as set

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forth above.

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IT IS SO ORDERED:

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DATED: May __, 2013

______________________________________
The Honorable Claudia Wilken
United States District Judge

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[Proposed] Order Granting Final Approval of Class Settlement,
Case No. C 09-02306 CW