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On What Grounds Can the State Discriminate?

September 16, 2011

I’m not sure what our situation looks like to outsiders. It may appear to be a real deal that in exchange for a monthly dollar amount higher than our old mortgage, Joy can have access to the service for which she qualifies under Medical Assistance via a program called TEFRA. I’m not being completely cynical because according to the state’s yearly reconciliation, she received 1.5 times the value in services than the amount we paid into the system last year. In other words, the system stretched our investment half again as far as it would have gone if we paid out-of-pocket. On a rational level, my brain adds that up to some savings, for which I am grateful.

But here’s the tarnish on the silver lining: when families are in the system, they are tethered to it like a yo-yo on a string. This afternoon our PCA agency informed us that in the most recent Minnesota state budget (the one that required state closure to pass), there is a new provision that requires PCA agencies to document the legal relationship between each client (Joy) and her PCAs because the new provision also mandates that family members (parents, siblings, grandparents by birth or adoption) will now be paid 20% less than non-family members for doing the same job.

What in the world are they thinking? Anyone have some insight??  Haven’t courts in the U.S. repeatedly determined that it is not fair to pay women less than men, or African American people less than white people for doing the same job? So how can it be fair to pay Joy’s grandma less than I can pay a stranger for doing the same job?

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12 Comments leave one →
  1. September 16, 2011 9:06 pm

    Because family relationship isn’t a suspect or quasi-suspect classification under the U.S. Constitution. So long as the distinction drawn by the rule is “rationally related” to an important government objective, it would pass Equal Protection analysis.

    These links might help:
    http://en.wikipedia.org/wiki/Suspect_classification

    Keep in mind though that the federal Constitution only sets the floor; the Minnesota constitution might actually provide more rights.

    **Just as an aside, for most employers the reason why they can’t discriminate based on race or gender is because of state or federal statute, not because of the Constitution. (On the link to the equal protection flowchart, not that the first question asks whether state/federal government action is involved. That’s because this analysis doesn’t apply to discrimination done by private groups.) However, equal protection analysis does apply to when the government is the employer and it also applies to government action generally, including provision of government benefits. So that’s why the Constitution comes into play in this case.

    • September 16, 2011 9:37 pm

      Okay. Thank you, R., for explaining part of it–why it is not akin to discrimination based on gender or race. But what does Joy’s grandma’s relationship to Joy have anything to do with the rate at which she should be compensated for doing her job? She is Joy’s best PCA –not just because she loves Joy but because she does a very good job. She has passed every state requirement for emploment (like certification) and has been observed on the job by our employment agency as required by the state. What bearing does the fact that she is married to my father (Joy’s grandfather by adoption) have on her job performance?

  2. September 16, 2011 9:40 pm

    I’m curious as to the rationale too. I’m guessing it has to do with fraud issues (maybe by changing incentives…?). I did see a reference to the fact that family members’ “compensation” for their services might be something other than financial rewards, at least in part (this was listed on an agenda for a stakeholder meeting). So I’m guessing another way of putting that would be, “Because we can get away with it — Grandma will still be a PCA even with less pay, because it’s her grandkid.”

    The state does make its legislative history publicly available online, but unfortunately it appears to be in video form only. I wasn’t dedicated enough to watch through what must be hours of committee activities and floor debates. I’m guessing that because of your research activities you have access to an academic library. If that’s the case, you may be able to access text-based legislative history through subscription databases. I’m guessing that, especially due to the cuts, this research might not be your top priority right now though . . .

    • September 16, 2011 10:07 pm

      R., What you observed, ““Because we can get away with it — Grandma will still be a PCA even with less pay, because it’s her grandkid,” is exactly what it feels like to me. You’re ahead of me in researching it. I took the practical out of asking our PCA agency to please supply a statute number or some other citation to the language and have not yet heard back. Curiously, the required DHS reporting form cites no grounds for mandating the information. (Usually there’s a line of 4 pt. type somewhere citing their justification for the request.)

  3. September 17, 2011 11:21 am

    Just adding more after some reflection…

    People with disabilities are a protected class under the ADA. So I think to object, we’d have to prove the new statute harms people with disabilities (I think. I’m obviously not a lawayer!)

    But I’m not sure it harms them –unless taking advantage of the way many families love their disabled kids is harm. It seems like the state decided it could save some money by paying family members less, betting that family members would not quit their jobs to take a higher paying job with a non-relaltive because their love would bind them to the job even after the pay rate was cut. So the child would suffer no harm because family-member care givers would just absorb the punch.

    It’s just evil thinking. Can you imagine the outcry if the state had tried to balance the budget by significantly cutting PCA services across the board? (It did as part of this budget deal: by 1.5%) That much more obviously might have been direct “harm.” So instead the state directed the harm at those who love children with disabilities.

    If we had domestically adopted Joy out of foster care, the services we pay for (in her case; this is not true of all domestic adoptions) would be picked up for free by the state and federal governments regardless of our income level. Instead, because she was adopted Internationally (I think the logic there is that she was South Korea’s financial burden; the U.S.A. had no obligation to support her) she receives services through income-linked access to MA (Medical Assistance), or TEFRA. So about two-thirds of the money paid out on her behalf is paid into the system by our family. Less than two-thirds of the money paid out on her behalf goes toward PCA care.

    That means that new state statute, in a way, dictates the way our family can spend the money we allot to Joy’s care. I feel like the state might have a right to determine how it spends it’s money. But not our money. And that’s what the state is doing: dictating that we (via our PCA agency) must pay Joy’s grandmother 20% less than we pay her other PCAs.

  4. September 17, 2011 1:23 pm

    This document does touch on some potential federal civil rights issues: http://www.mylegalaid.org/mdlc/current-projects/pca-changes/pca-changes-faqs

    • September 17, 2011 1:25 pm

      That has to do more generally with the effects of PCA cuts on the consumer, not on the provider. It goes the ADA route you mentioned earlier.

  5. September 17, 2011 1:37 pm

    Apparently one of the changes instituted is that if someone lives in a group home or apartment, the PCA provider cannot be the same company that owns or controls the group home. That is because apparently some group homes have been requiring or coercing consumers to use the their company for PCA services, when the program was designed so that the consumers could be in charge of choosing their providers. But I don’t see that being the same kind of problem with family members, so that couldn’t account for the 20% rule.

    I could see how there might be concerns about fraud–maybe family members can get away with overstating their hours because the consumer doesn’t want to jeopardize the family relationship or the source of funds by calling them out on it. But I’m not sure the 20% really gets at that either. Unless maybe the legislature thinks they’re overspending by 20% due to fraud by family members and so they took the pragmatic approach by decreasing pay by that amount rather than just adding more red tape to deal with fraud. But that seems a little far-fetched.

    I also skimmed the 2009 report linked below. It does mention, that under some state’s program, using family members as PCAs gives consumers a disincentive to save up their funds allocated to care to use on things other than PCA services. (Presumably, one is pressured to spread the wealth among one’s own family members rather than buy assistive products, or so the reasoning goes.) But I don’t think that was a reference to Minnesota (I don’t really remember), and even if it was, it doesn’t seem like it would apply under the program your daughter is covered under, because she receives her PCA services as a number of hours, not as a sum of cash to be spent, right?

    http://rtc.umn.edu/docs/MNPCAInterimReport1.pdf

    • September 17, 2011 1:40 pm

      That last part was on page E-48. It was with respect to Washington.

  6. September 17, 2011 2:52 pm

    Yes, R. Very early, we selected a program called a Consumer Support Grant under which we had the option to allocate Joy’s funds (computed as a set fraction of the funding for the total number of hours of PCA time her level of dependence qualified for) between necesary equipment (as approved by the county) and for PCA time. However, under that program we paid in (via TEFRA) more than we spent. So the next year we opted for a PCA Choice program that gives us access to 100% of her PCA time, but no equipment or anything else. She is not curently enrolled in any of the Waiver programs that offer other options,although she may be in the future.

    Thanks for giving me some research leads! I’m grateful that the public comment period is open until October 14 so I can get my MS off my desk again before formulating my commments.

Trackbacks

  1. Lawsuit Argues PCA Law is Discriminatory « daysofwonderandgrace
  2. Ruling: Families Are Not A Protected Class « daysofwonderandgrace

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