Washington S.Ct. Medicaid comparability case

The Supreme Court of Washington, sitting en banc, decided, by a vote of five judges to three, that the state’s “shared living rule” which reduced funding for in-home care by 15 percent because the recipients were living with their paid caregivers violated federal law. The case concerned the consolidated appeal of individual state administrative hearings, for which state law confers jurisdiction on an appeal to state court. While the plaintiffs alleged multiple violations of federal law, including the American with Disabilities Act and constitutional guarantees of equal protection and due process, the court decided the issue solely based on the Medicaid comparability provision. Having decided that the state rule violates the comparability provision, the court declined to address any of the other allegedly applicable federal laws. Jenkins v. Washington State Department of Social and Health Services, 2007 WL 1288780, Nos. 78652-6, 78931-2 (Wash. May 3, 2007).

The case concerned three separate plaintiffs who received Medicaid payments for in-home personal care services to help them with basic activities of daily living.  The first plaintiff is living with HIV/AIDS, and his caregiver is his partner.  The second plaintiff is developmentally disabled and lives with an unrelated paid caregiver.  The third plaintiff has kidney disease and is an insulin dependent diabetic.  Her caregiver is her son.  The state conducted a “time study report” of caregivers, and concluded that the percentage of time devoted by live-in caregivers to household tasks ranged from 33% to 44%.  The state then developed the “shared living rule,” which applied an irrebuttable presumption that beneficiaries with live-in caregivers need 15% fewer in-home care hours.  The “theory” behind the shared living rule is that “if caregivers must clean their own houses, go shopping, and cook meals for their own benefit, certain duplication of efforts are presumed, and … a state should not pay for those tasks that benefit the entire household.”

 

The Washington Supreme Court held that the 15% reduction in funded in-home care hours violated the Medicaid Act’s comparability requirements, 42 U.S.C. §1396a(a)(10)(B), which provides that Medicaid shall be “made available to any individual…[and] shall not be less in amount, duration, or scope than the medical assistance made available to any other such individual.”  The court held that the state’s irrefutable presumption that people with live-in caregivers need fewer in-home care hours “neither addresses nor evaluates the variation of individual situations where caregivers perform household tasks that may benefit both the recipient and the household generally.”  The court found that this lack of individualized assessment of needs for housekeeping, shopping and meal preparation treats the plaintiffs differently than other Medicaid beneficiaries.   For instance, the plaintiff with kidney disease and diabetes had a special diet requiring 8 hours per month of additional shopping and 45 hours per month of specialized meal preparation.   The court concluded that the state “violates the comparability requirement when it reduces a recipient’s benefits based on a consideration other than the recipient’s actual need.” 

 

The court criticized the inflexible 15% cut in funded hours.  The court noted that neither the state agency nor the time study report provided “any explanation of how the 15 percent amount is derived from the study’s data.”  The court held that the state’s presumption that “some recipients need fewer hours of care without individualized determination violates the comparability requirement.” 

 

The state also argued that the comparability requirement was inapplicable, since the plaintiffs were receiving services under a Medicaid waiver.  The court noted that the waiver application did not mention the shared living rule, and therefore, the waiver program was not exempt from the federal comparability requirement.

 

The dissent focused on Chevron deference to the federal government’s regulations.  Chevron U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 842-44 (1984).  (The majority focused on the federal statute and did not address the federal regulations.)  The dissent concluded that a federal regulation interpreting the comparability provision which permitted utilization control procedures, was “illustrative, not exhaustive, of the type of criteria by which a state may permissibly limit the provision of services.”  The dissent further cited a federal primer which stated that “services cannot be furnished if they principally benefit the ‘family unit.’”  The dissent found that the shared living rule’s irrebuttable presumption is only one of many irrebuttable presumptions in the state’s assessment tool.  The dissent noted that the assessment tool does not individually assess anyone’s need for housekeeping, shopping, and meal preparation, and therefore concluded that beneficiaries with live-in caregivers are not treated differently.