The Minnesota Disability Law Center and MN-CCD are working together to get the word out about personal care assistant (PCA) service reductions or termination notices. Law Center staff believe that it is likely that many people haven’t been given the required 30 days in which to appeal proposed cuts to their services. One situation involves a client who got notice three days before the cuts are to be effective. Please see attached letter to Commission Ludeman sent by the Disability Law Center yesterday.

Law Center staff emphasize that it is very important that everyone who gets a Notice of PCA Termination or Hours Reduction immediately request an appeal in writing. In that same letter, the affected person should request that PCA services continue pending appeal. The letters are best faxed to reach officials more quickly, Also, it’s important for anyone whose service is threatened with cuts to contact his or her PCA provider know that of the pending appeal, and that there is a request for continuing PCA services pending appeal.

One concern disability community leaders have is that some public health personnel may be spreading misinformation about PCA services, the pending cuts and the possibility of elimination of services in the future.

Information about the PCA changes can be found at the Disability Law Center Web site: www.mylegalaid.org/mdlc/current-projects/pca-changes

Mail or fax the appeal and request for continued services to: Appeals Office, MN Department of Human Services, P.O. Box 64941, St. Paul, MN 55164-0941; Phone: 651-431-3600; Fax: 651-431-7523

Keep a copy of the mailed or faxed letter.

The Disability Law Center will not be able to represent everyone who needs help to appeal, but is especially interested in hearing from people who are terminated totally from PCA services or who will have to move out of their home or apartment due to the cut in hours of PCA services. The web link contains a list of organizations to contact for help with PCA appeals.

More information will be provided through MN-CCD as more is learned about the legal issues and the serious impact that the cuts are having on the lives of persons with disabilities.

The following letter was sent in December 2009 to DHS Commissioner Cal Ludeman.

Dear Commissioner Ludeman:

I am writing you to express the Minnesota Disability Law Center’s (MDLC) serious concerns regarding the Minnesota Department of Human Services’ (DHS) notices being sent to individuals whose Personal Care Assistance (PCA) hours are being terminated or reduced. The MDLC is the federally mandated Protection and Advocacy agency for Minnesotans with disabilities.

As you are aware, the Minnesota Legislature changed the eligibility requirements for the PCA program during the last legislative session. As a result of the changes to the program, thousands of individuals with disabilities are going to be terminated from the PCA program or have their PCA hours reduced. Beginning this December, DHS has been sending notices to these individuals. I understand that these individuals receive three documents informing them of DHS’s action, one from their county or health plan (page one of PCA Assessment— Attachment 1) and two from DHS. Recipients receive a Home Care Services Appeal Notice (Appeal Notice—Attachment 2) and a MA Home Care Prior Authorization, Denial, Termination, or Reduction Notice (DTR Notice— Attachment 3) from DHS. These documents do not provide specific information to recipients about the action being taken and do not comply with federal and state law.

Due Process

DHS’s Appeal Notice and DTR Notice, whether viewed separately or combined, violate the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. To satisfy due process, an agency, such as DHS, contemplating a termination or reduction of public assistance benefits must provide the recipient timely and adequate notice detailing the reasons for the proposed termination and an effective opportunity to appeal the cut. See Goldberg v. Kelly, 297 U.S. 254, 267-68 (1970). The PCA notices DHS is sending to individuals do not provide the individual with timely and adequate notice or an effective opportunity to challenge the cut.

Although the DTR Notice informs individuals whether their PCA services have been denied, reduced, or terminated, neither it, nor the Appeal Notice, provides the individual with the rationale for the decision as 42 C.F.R. § 431.210 requires. Granted, the DTR Notice advises individuals to review their PCA assessment for more detailed information about the basis for the termination or reduction. However, the individual does not receive the assessment contemporaneously with the DTR and Appeal Notice. In fact, this crucial assessment is mailed to the individual by an agency other than DHS and on a statutorily prescribed time schedule that runs distinct and independent of the DTR and Appeal Notices mailing time-frame. As a result, in some cases an individual might not receive the assessment until two weeks after receipt of the DTR and Appeal Notices.

This disconnect between the mailing of the notices and the assessment fails to provide individuals with due process. First, the separate mailings create unnecessary confusion for the individuals who are attempting to understand the rationale for the termination or reduction of their PCA services. Second, they effectively deprive individuals of the right to a full 30 days in which to decide whether to appeal since the individual may not receive the assessment until well after the receipt of the Appeal and DTR Notice have presumably triggered the running of the 30 day period.

The Alaska Supreme Court recently found that the Alaska Department of Health & Social Services (HSS) violated the Due Process Clause when it failed to sufficiently inform Personal Care Attendant program beneficiaries of the basis for reductions in service coverage. Baker v. State, Department of Health and Social Services, 191 P.3d 1005 (Alaska 2008). The Court held that the Due Process Clause required that HSS mail the PCA assessment together with the notice of reduction to ensure the individual is able to understand the basis for HSS’ decision. Id.

Like the notices being sent out in the Alaska case, the PCA reduction notices DHS is sending out violate the Due Process Clause as they do not include the PCA assessment in the same mailing. To provide effective, advance notice, DHS must mail the Appeal Notice and the DTR Notice together with the PCA assessment.

Further, not only must DHS mail the Appeal Notice, DTR Notice, and PCA assessment in the same mailing, it also must provide at least 30 days notice before taking any adverse action. Currently, it appears that in some cases DHS has been providing recipients with less than 30 days notice before a termination or reduction in benefits. However, Minnesota law clearly provides that a recipient of PCA services is entitled to at least 30 days notice before any adverse action is taken. Minn. Stat. § 256B.059, subdiv. 30. Therefore, DHS must provide complete information about the action being taken, and the legal and factual reasons for the action to every recipient at least 30 days before any termination or cut is made.

Appeal Notice

The Appeal Notice that DHS sends out conflicts with state law. The Appeal Notice is unclear and confusing regarding the time period a recipient has to request an appeal and keep services pending appeal. It states that “you have 30 days from the day you get this notice to send your appeal.” That is correct. However, the sixth paragraph of the Appeal Notice states:

To keep the same services and hours until the State decides your appeal, you must send your appeal:

• Within 10 days of the date in the upper left hand corner of the notice, or

• before the “EFFECTIVE DATE” to the right of your name on this notice.

This sentence is incorrect and violates Minnesota Statute Section 256B.0659, subdivision 30, which mandates recipients have at least 30 days notice before any reduction and that a recipient be allowed to request continued services pending an appeal within the 30 day appeal period. This sentence limiting recipients to just 10 days to maintain benefits must be removed from the Appeal Notice for the notice to comply with state law.

The second to last paragraph of the Appeal Notice is entitled, “How to Prepare for Your Appeal.” This paragraph is also misleading. First, it assumes that every hearing will be an in-person hearing. In practice, unless a recipient requests an in-person hearing, DHS generally schedules a telephone hearing. Second, the notice says nothing about the right to a telephone hearing. It implies that an individual appealing must have an in-person hearing before a Human Services Judge. Minnesota law clearly provides the right to a telephone hearing. See Minn. Stat. § 256.045, subdiv. 4. The Appeal Notice should be corrected to inform recipients of their right to a telephone hearing.

Other Concerns

The paragraph beginning with “Your Duty if You Lose Your Appeal” states that “If you continue to receive the same services and hours and you lose your appeal, the law says the State will bill you.” However, in the next paragraph the Appeal Notice states that “If your services stay the same, and you lose your appeal, the State may bill you.” These two sentences are inconsistent and misleading. State law does not require the state bill individuals who receive benefits during the appeal and ultimately lose their appeal. Minnesota Statute Section 256.045 only provides that the state or county has a claim for medical assistance payments provided pending appeal if the recipient is deemed ineligible. Therefore, the “will” in the above-mentioned sentence of the Appeal Notice must be changed to “may.”

Finally, with regard to the Appeal Notice, it would be helpful if individuals receiving the notice had the fax number for DHS’s Appeals and Regulations Division so that they could fax in their request for appeal. Currently, it only contains the mailing address and the telephone number for the Appeals and Regulations Division. The Appeal Notice should be updated to add the Appeals and Regulations Division fax number.

Conclusion

The MDLC has already expressed a number of our concerns to staff in DHS’s Disability Services Division. Unfortunately, our concerns have not been addressed. Therefore, we are asking you to address the deficiencies in the notices in order to ensure that individuals are receiving the effective notice that the law requires.

Please contact me in writing within the next two weeks to let me know what steps DHS is taking to cure its legally insufficient notices. Thank you for your attention to this matter.

Justin M. Page, Staff Attorney