Beneficiary Sues Pennsylvania Over Loss of HCBS Services
August 8, 2014 04:38 PM
In Smith v. Department of Public Welfare of the Commonwealth of Pennsylvania, a Plaintiff filed a lawsuit in the United States District Court for the Eastern District of Pennsylvania on behalf of herself as well as other “similarly situated persons” against the state for not providing them with community-based attendant care services in the Act 150 Program. The United States Department of Justice (DOJ) filed a statement of interest in the case on June 12. On June 30, the Department of Public Welfare (DPW) filed a response to that statement.
This case continues to be litigated.
According to the Statement of Interest, the physically disabled in Pennsylvania needing assistance in the home with activities of daily living can receive services through one of two funding sources. They can receive services through the federal and state funded Attendant Care Waiver based on clinical and financial eligibility, or through the state funded Act 150 program based on clinical eligibility.
Act 150 waiting list. The waitlist for the Act 150 program has grown incrementally. Before 2009, all eligible individuals were able to be enrolled. However, funding was decreased to the program. In fiscal year 2007 to 2008, funding stood at $45 million, but the program is currently funded at only $26 million. Budgeted slots for Act 150 services decreased from 2,479 in 2007-2008 to 2,277 in 2011-2012, and 2,016 in 2012-2013. At the same time, a waitlist for Act 150 program attendant care services has resulted, growing to 283 at the time of the Statement of Interest. Seven of those on the waitlist reside in nursing homes. For details, see page 3 of the Statement of Interest, here.
The Plaintiff. The Plaintiff is a 56-year old woman with multiple sclerosis who has been placed on the Act 150 waiting list. DPW found her eligible for the Attendant Care Waiver program, and she was later transferred to the Act 150 program. As with the waiver program, she continued to receive 35 hours of services a week, until she was taken off the Act 150 Program in 2008 after failing to pay her copayments. She re-applied for the Act 150 Program. While she is eligible for these services, she cannot receive them due to the waiting list. For details, see pages 7-12, here.
The Plaintiff brings her suit against DPW based on two grounds, alleging that the Defendant violated Title II of the Americans with Disabilities Act (ADA), and Section 504 of the Rehabilitation Act.
Serious risk of institutionalization. The Plaintiff alleges that the DPW puts her and others in institutions or at serious risk of institutionalization, given that DPW has not provided them with attendant care services in the community. For details, see pages 14, here. The DOJ, citing case law, further asserts that serious risk of institutionalization can be established by showing a “lack of sufficient state-sponsored community-based services” that in turn “will likely cause a decline in a plaintiff’s health, safety, or welfare that would lead to her eventual placement in an institution.” For details, see page 8, here.
State’s response. In response to that allegation, DPW alleges that the waiting list does not cause a serious risk of institutionalization. DPW cites the fact that the waiting list has existed for five years and there is no evidence that the waiting list has resulted in any institutionalization. Also, DPW asserts that less than 3% of those on the waiting list are institutionalized, and there is no evidence that they were institutionalized because of a lack of Act 150 services. For details, see page 1-2, here.
Lack of services and assessment. The Plaintiff also alleges that DPW doesn’t have a system in place which properly assesses which people on the waiting list are either institutionalized or at risk of institutionalization, and to provide such people “specific and concrete benchmarks and timelines” for the eventual provision of such services. Finally, the Plaintiff alleges that DPW serves less people through the Act 150 program despite a growing need for those services. For details, see page 15, here.
State’s response. DPW asserts that those on the waiting list can become eligible for home and community-based services through the Attendant Care Waiver by using pooled trusts to become income eligible. DPW asserts that such services have no waiting list. For details, see page 2, here.
Relief Requested and Class Status Sought
The Plaintiff seeks that this lawsuit be made into a class action, consisting of “[a]ll Pennsylvanians who are or will be placed on the waiting list for the Act 150 Program,” and declaratory and injunctive relief. For details, see pages 5 and 17, here.
While Pennsylvania argues that the Act 150 waiting list does not put people at increased risk for institutionalization, a recent study by the Department of Health and Human Services analyzed by NAHC’s affiliate the National Council on Medicaid Home Care suggests that nationally, waiting lists in fact do increase risk for institutionalization. The Council will continue to monitor the waiting list trend as it has in North Carolina, Michigan, and Kansas.
The Council further encourages providers to continue to advocate for greater support of HCBS through their state associations, as well as through state and federal governments. Home care providers are encouraged to keep abreast of HCBS developments in their states, and nationally, and to contact the Council with any questions or concerns.