Question: My state is considering a rule that would make reductions to hours of personal care services based on whether the individual lives with paid caregivers who provided assistance to him. Have there been successful challenges in other states to similar rules?
Brief answer: Yes. State courts in Washington and Missouri have recently invalidated rules that (1) took into consideration the financial situation of a live-in caregiver or (2) automatically reduced the number of personal care hours based on whether the individual lived with a paid caregiver as violations of the federal Medicaid Act. The rule your state is considering may similarly violate the federal law.
Advocates in Washington and Missouri who challenged rules that resulted in reductions to personal care hours have met with success in recent months. This fact sheet describes the two cases.
In Jensen v. Mo. Dept of Health and Human Servs., the plaintiff, Elisha Jensen, appealed a decision reducing her personal care services. Ms. Jensen, twenty seven, sustained a traumatic brain injury at age ten that caused speech, vision, mobility and memory disabilities. 186 S.W.3d 857, 2006 Mo. App. Lexis 369 (App. Ct. Mo. 2006). While living with her parents, she obtained a high school diploma and took several college courses. Through Missouri’s Medicaid program, Ms. Jensen had been receiving six hours of personal care services known as “PCA”) six hours per day, seven days per week since 2001.2 Her mother is her paid caregiver. Id. at *2.
During an annual review in 2003, Ms. Jensen’s services were reduced to five days per week. The caseworker determined that Ms. Jensen had failed to document that it would be an “undue hardship” for her parents to meet her needs on the additional two days. Id. at *3. This decision was based on Missouri regulatory requirements collectively referred to as the “supplanting policy,” because the Medicaid agency aimed to prevent “the supplanting of services that are already available to the consumer from family members or others through [a] natural support system.” Id. at *11.———————————————————————————–
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