Marshall

Daniel E. Lungren, Attorney General, Robert L. Mukai, Chief Assistant Attorney General, Charlton G. Holland III, Assistant Attorney General,

John H. Sanders and Paula L. Gibson, Deputy Attorneys General, for Defendants and Respondents.

OPINION

FROEHLICH, J.

Applicants and recipients (applicants) of "in-home supportive services" under Welfare and Institutions Code [1] section 12300 et seq. challenge a Department of Social Services (Department) regulation limiting "protective supervision" to "non self-directing, confused, mentally impaired, or mentally ill persons." (Manual of Policies and Procedures, § 30-757.171, hereafter MPP.) Protective supervision is described as monitoring a person's behavior in order to safeguard that person against injury or death. The applicants filed this action for declaratory and injunctive relief and mandamus against the Department and its director, Linda S. McMahon, claiming both physically and mentally impaired applicants are entitled to in-home protective supervision. They contend the Department's policy limiting protective supervision to mentally impaired persons violates the state statutory scheme, the Federal Rehabilitation Act ( 29 U.S.C. §…

Applicants and recipients (applicants) of “in-home supportive services” under Welfare and Institutions Code 1 section 12300 et seq. challenge a Department of Social Services (Department) regulation limiting “protective supervision” to “non self-directing, confused, mentally impaired, or mentally ill persons.” (Manual of Policies and Procedures, § 30-757.171, hereafter MPP.) Protective supervision is described as monitoring a person’s behavior in order to safeguard that person against injury or death. The applicants filed this action for declaratory and injunctive relief and mandamus against the Department and its director, Linda S. McMahon, claiming both physically and mentally impaired applicants are entitled to in-home protective supervision. They contend the Department’s policy limiting protective supervision to mentally impaired persons violates the state statutory scheme, the Federal Rehabilitation Act ( 29 U.S.C. § 794 ), and equal protection of law under the United States and California Constitutions.

The court found the regulation limiting protective supervision to “non self-directing” or otherwise mentally infirm persons is reasonable and consistent with the…

Almost 20 years ago California established the In-Home Supportive Services (IHSS) program “to enable aged, blind or disabled poor to avoid institutionalization by remaining in their homes with proper supportive services.” (Miller v. Woods (1983) 148 Cal.App.3d 862, 867 [ 196 Cal.Rptr. 69 ]; see Welf. & Inst. Code § 12300 et seq. 1 ) By definition, IHSS recipients “cannot safely remain in their homes . . . unless these services are provided.” (§ 12300, subd. (a).) The purposes underlying the program, part social and part fiscal, are a fiinction of the problems associated with institutionalization, the necessary alternative if the supportive services were not available. Socially, recipients are more comfortable in familiar surroundings which contribute to their physical and psychological well being. Fiscally, institutionalization costs far more than providing supportive services in the home.

The challenged Department of Social Services (DSS) regulation singles out one of the enumerated support services, “protective supervision,” and denies it to anyone other than persons with a mental disability. Having defined protective supervision as “monitoring behavior,” DSS suggests that…