Cuts to medical assistance reimbursement rates, made behind closed doors during the 2011 Minnesota Legislature’s July special session are at the center of a lawsuit against the State of Minnesota. The lawsuit was filed Oct. 25 in Ramsey County District Court on behalf of eight home health care agencies, employees and their clients with various disabilities.

The lawsuit alleges that the new law is unconstitutional because it arbitrarily singles out those who provide home health care to relatives for different treatment, and discriminates against women and minorities. The change by state lawmakers is seen as hitting  outstate Minnesota residents hard, because many people with disabilities in rural areas must rely on relatives for care. The lawsuit affects about 6,950 people.

The advocates won a small victory Oct. 26 when Ramsey County District Court Judge Dale Lindman agreed to their request for a temporary restraining order that prohibits Gov. Mark Dayton and Human Services Commissioner Commissioner Lucinda Jesson from implementing or enforcing a new law that reduces medical assistance reimbursement by 20 percent only for caregivers who provide services to relatives.

A hearing on a permanent injunction is expected sometime in November.

Advocates contend that the cut to care by relatives violates the federal Civil Rights Act and the state constitution. They contend it will have relatives devastating effects on families of the mentally and physically disabled, women, people of color and immigrants whose first language is not English, and personal care provider organizations that serve communities of color. These groups make up a disproportionate number of those who provide care to family members.

They also noted, at an Oct. 25 press conference at the state capitol, that the change is discriminatory because it arbitrarily classifies relative and non-relative home health care providers for different treatment. Both classifications are required to meet the same qualifications to be licensed, are authorized by the state to provide the same array of health care services and are otherwise similarly status in every respect.

“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 PCAs 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.”

Deonte Franklin, a family caregiver, is affected by the pay cut. “I went through PCA training, passed the test, and got my license so that I could take care of my sister,” she said. “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.”

HealthStar Home Health, et al vs. Dayton et al may be just one of several actions triggered by the special legislative session held in July. One complaint by news media, advocates and lobbyists is that much of the state budget balancing went on behind closed doors, not giving the public their right to speak to proposed changes meant to balance the state’s $5 billion budget deficit.

Some changes have been delayed. One of these, postponed until Nov. 1, is a 10 percent cut in payment for care of 2,750 people with physical and developmental disabilities. The fallout from this cut could be the closing of small group homes that serve residents with disabilities who are considered “low need.”

Others, such as a funding cut that affected the voicemail service Open Access Twin Cities, have had the effect of slashing down some services. The change affecting relative caregivers took place Oct. 1 but has been set aside due to Lindman’s action.

The Minnesota Department of Human Services hasn’t commented on the lawsuit. But Rep. Jim Abeler, R-Anoka, has defended the cut. 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.”

But that has met a vehement response from community members. 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 it 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.”

“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,” said 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 PCAs are Native American women who care for their relatives.”

“PCA care 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.”