LAWSUIT CHALLENGES CONSTITUTIONALITY OF MEDICAL ASSISTANCE REIMBURSEMENT CUTS FOR HOME HEALTH PROVIDERS
Suit Alleges that Discrimination Against Relative Care Givers Violates State Constitution
Minneapolis, MN (October 25, 2011) -- A group of home health care agencies, employees and mentally and physically disabled clients have sued the State of Minnesota, asking a Ramsey County District Judge to strike down a law passed at the end of the 2011 Special Session that singles out home health care workers who provide services to relatives for medical-assistance reimbursement cuts.
At the close of the 2011 Special Session, the Legislature passed a law that reduced medical assistance reimbursement to home health care agencies by 20% for services their employees provide to mentally and physically disabled people who are relatives of the caregivers. The law went into effect on October 1, 2011.
Representative Jim Abeler, Chair of the House Health and Human Services Committee, said that the law was passed because “many people care for their disabled child and don’t get paid anything . . . I talked to the Department about it and they thought if we reduced the rate, that most people will still do it.”
Elin Ohlsson, owner of Care Planners Inc., had a different take on it. “We understand that the Legislature has an obligation to balance the budget, but we don’t understand why they thought is was appropriate to do it by targeting mentally and physically disabled people who receive needed in-home care from relatives. The fact is, personal care assistants who chose to care for their relatives are already working for wages that barely allow them to meet family needs, and they simply can’t afford to work for less.”
Deonte Franklin agreed. “I went through PCA training, passed the test, and got my license so that I could take care of my sister. She has cerebral palsy. We barely get by now. If my pay is cut by 20%, I will either have to get a different job, or I will have to go on some kind of public assistance. It just seems crazy to me that the State is willing to pay some stranger more than they will pay me to take care of my sister.”
“These cuts will hit the Asian American community especially hard,” said Neng Yang of United Home Health Care. “Most of my clients are Asian, and almost all of my personal care assistants care for their relatives. State policies encourage culture care. Why is the State willing to reimburse PCA’s who don’t even speak the Hmong language at 100%, but not relatives who can provide the best care for their loved ones?”
“The Hispanic and Latin American communities are also very family oriented,” commented Life Fountain representative Wilmar DelGado. “Half of the PCA’s that work for me take care of relatives, and nearly all of them are women. That is our way.”
“After careful consideration of the effects that a 20% cut in medical assistance reimbursement for the services provided by our personal care assistants to their relatives would have on our employees, disabled clients and their families, we felt it was our moral obligation to challenge the law,” said Tim Lively, President of HealthStar Home Health. “Our agency mostly serves the Native American community, and a disproportionately high percentage of our PCA’s are Native American women who care for their relatives.”
“On its face, the law is unconstitutional,” said David Bradley Olsen, the attorney who is representing the plaintiffs. “The State determines who is in need of in-home services, and what services are authorized for reimbursement. And the State requires that all PCA’s have the same training, and pass the same tests. There is simply no rational reason for paying equally-qualified people less for the same work, just because they happen to be related to the person in need of care. This is what happens when the Legislature passes laws in the middle of the night without input from those who will be affected.”
“PCA recipients are low income citizens with disabilities who require trusted and trained caregivers to help them function safely and independently in the community”, said Tim Plant, HealthStar Executive Director. “These are not middle or upper income families who might comfortably choose to stay at home and care for a relative without full pay. If this new law continues to be implemented, many people with disabilities will lose a trusted, qualified caregiver, and will likely be replaced by a stranger at a higher cost to the State or, worse, will be unnecessarily institutionalized. Tragically, most of the impact will be felt by minority communities.”
HealthStar Home Health, et al vs. Dayton et al
District Court, Ramsey County
1) The pay cut to direct care staff who support their relatives is unconstitutional.
• Direct care staff, called personal care assistants, (PCAs) who support a relative are now paid 20% less than those who support non-relatives, just because they are a relative and for no other stated reason.
• The pay cut arbitrarily creates two classes of employees who have the same training and license and who do the same work.
2) This PCA pay cut discriminates against ethnic community members, people of color, women, and rural Minnesotans.
• Ethnic community members have a cultural preference for a relative caregiver, sometimes even requiring a family member who speaks their language.
• Women are much more frequently employed as personal care attendants for their relatives than men are.
• Rural Minnesota community members often employ relatives as PCAs because only family members are available. People who live in Minnesota’s larger cities have a greater pool of potential employees.
• Consequently, Women, people of color, and rural Minnesotans who care for their relatives will be paid 20% less for the same work than those who care for non-relatives.
3) The 20% disparity in pay between PCAs who support relatives and those who support non-relatives causes avoidable suffering, health problems, and safety risks for some of our state’s most vulnerable citizens.
• PCAs ensure the basic safety needs of people with disabilities and provide support so that they can continue to function independently in the community.
• If a relative PCA must take a better paying job because of a 20% pay cut, many recipients will lose a trusted person who provides them the proper support and care.
• Recipients who lose services because of the 20% pay cut will face intervals without anyone to care for them in their homes.
• If PCAs are unable to provide care to their relatives because of the 20% pay cut, and these relatives are unable to find PCAs to replace them, they are at risk of being placed in institutions. This is an alternative that they don’t want and which costs the state more money than caring for them in their homes.
4) Almost all states in the U.S. pay PCAs to provide care for a relative.
o According to a recent national survey conducted by NASDDDS (National Association of State Directors of Developmental Disability Services): *
o 46/48 responding states pay most categories of relatives to provide in home care for qualifying family members with disabilities.
o While a few states set limits on the number of hours for which a relative can be reimbursed for care, no state in the study is reported as paying less to an equally qualified relative than a non-relative who provides the same care.
5) The 20% cut will affect a substantial number of PCAs in Minnesota.
o DHS interpreted data received from a provider survey early in 2011 to estimate that 31% of Personal Care Provider Program recipients received care from a PCA who was also a relative.
o DHS estimates that: a 20% cut in reimbursement to PCA agencies for care provided by a relative would cut a total of $23.775 million in the 2012-2013 biennium from the human services budget and $32.843 million in the 2014-2015 biennium.
o DHS estimates included the expectation that provider organizations would cut the pay of PCAs’ providing care to relatives by 20%
*‘Paying Relatives Providing Supports’, Robin E. Cooper, NASDDDS, Reinventing Quality, August, 2010 http://www.reinventingquality.org/docs/RCooper10.pdf
**Minnesota Department of Human Services Staff