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California Temporarily Halts Disqualification of In-Home Care Givers with Felony Records

California Temporarily Halts Disqualification of In-Home Care Givers with Felony Records

An Alameda County judge has stopped the state from disqualifying people with felony records from being in-home care workers, the third judicial setback for Gov. Arnold Schwarzenegger’s attempt to scale back the program that provides domestic help for 462,000 low-income elderly and disabled Californians.

Superior Court Judge Frank Roesch issued a temporary restraining order on Nov. 24, 2009 that halted enforcement of the restrictions at least until Jan. 29, 2010 when he holds a hearing on a longer-lasting preliminary injunction.

Schwarzenegger had put the new rules into effect on Nov. 1, 2009. They were challenged by seven in-home care providers who cited a state law that bans workers from the program if they had been convicted of a specific felony – involving fraud against a government program or child or elder abuse – in the previous 10 years.

The governor’s regulations go further, barring anyone who has been convicted of any felony, or of misdemeanors involving child abuse, from working in the program.

Roesch told lawyers during the hearing that the plaintiffs were likely to prove that the state lacked legal authority for Schwarzenegger’s restrictions, said Peter Sheehan, attorney for the workers.

The In-Home Supportive Services program provides care to the blind and disabled and those older than 65 who need help with daily tasks to live at home. The federal government pays about 60 percent of the cost.

Schwarzenegger has said there is widespread fraud and abuse in the program and has ordered background checks for workers and fingerprinting for workers and recipients.

In June, U.S. District Judge Claudia Wilken rejected the state’s attempt to cut $2 an hour from in-home workers’ wages, now $10 to $12 an hour in most counties. Wilken blocked a second cost-cutting measure in October, 2009 which would have eliminated home care for 36,000 people and reduced services for 97,000.

The ban on convicted felons was not designed as a money saver, but as a measure to protect the program and its recipients. Sheehan, of the nonprofit Social Justice Law Project, contended the exclusion is much broader than necessary and would force many elderly and disabled people into nursing homes.

He said it would ban one of his clients, who has a 33-year-old felony conviction, from continuing to provide state-paid care for her 90-year-old mother. Another client has cared for her elderly mother for the past eight or nine years after being convicted of manslaughter for a fatal car accident, Sheehan said.

Lizelda Lopez, spokeswoman for the state Department of Social Services, said the regulations are based on long-standing state laws that require suspension of any health care provider convicted of a felony or certain serious misdemeanors. State lawyers concluded the laws prohibit any such person from giving in-home care, she said.

But Sheehan said the laws were intended to apply only to those who committed crimes while working in the program and have never before been interpreted to cover all past convictions.

– from Steven Peck, Senior Attorney at Peck Law Group

About the Author

Attorney Steven Peck has been practicing law since 1981. A former successful business owner, Mr. Peck initially focused his legal career on business law. Within the first three years, after some colleagues and friend’s parents endured nursing home neglect and elder abuse, he continued his education to begin practicing elder law and nursing home abuse law.


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