11-1800-12177-2

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE DEPARTMENT OF HUMAN SERVICES

This matter is pending before Administrative Law Judge Barbara L. Neilson on cross-motions for summary disposition filed by the Department of Human Services and MILS.  David A. Rowley, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, Minnesota 55101-2127, appeared on behalf of the Department of Human Services.  William L. Lucas, Attorney at Law, 7456 Cahill Road, Edina, Minnesota  55439-2728, appeared on behalf of Appellant Minnesota independent Living Services (“MILS”).  Oral argument concerning the cross-motions was hearing on July 6, 2000, at which time the record with respect to the motions closed. 

Notice is hereby given that, pursuant to Minn. Stat. § 14.61, the final decision of the Commissioner of Human Services shall not be made until this Recommended Order has been made available to the parties to the proceeding for at least ten days, and an opportunity has been afforded to each party adversely affected to file exceptions and present argument to the Commissioner.  Parties should contact Michael O’Keefe, Commissioner of Human Services, 444 Lafayette Road, St. Paul, Minnesota  55155 (telephone number (651) 296-2701), to learn about the procedure for filing exceptions or presenting argument.

Based upon all the files, records, and proceedings herein, and for the reasons set forth in the accompanying Memorandum, the Administrative Law Judge makes the following:

RECOMMENDATION

IT IS HEREBY RESPECTFULLY RECOMMENDED that:

1.                  The Motion for Summary Disposition filed by MILS be GRANTED.

2.                  The Motion for Summary Disposition filed by the Department be DENIED.

Dated:  August 7, 2000.

                                                                                    _____________________________

                                                                                    BARBARA L. NEILSON

                                                                                    Administrative Law Judge

NOTICE

Pursuant to Minn. Stat. § 14.62, subd. 1, the agency is required to serve its final decision upon each party and the Administrative Law Judge by first class mail.

MEMORANDUM

Each of the parties in this contested case proceeding has moved for summary disposition on the grounds that there are no material issues of fact in dispute and the party is entitled to disposition of this case in its favor as a matter of law.  Summary disposition is the administrative equivalent of summary judgment.[1]  Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.[2]  A genuine issue is one that is not a sham or frivolous.  A material fact is a fact whose resolution will affect the result or outcome of the case.[3]

To successfully resist a motion for summary disposition, the nonmoving party must show that specific facts are in dispute which have a bearing on the outcome of the case.[4]  The  existence of a genuine issue of material fact must be established by the nonmoving party by substantial evidence; general averments are not enough to meet the nonmoving party's burden under Minn. R. Civ. P. 56.05.[5]  The evidence presented to defeat a summary judgment motion, however, need not be in a form that would be admissible at trial.[6]  The nonmoving party also has the benefit of the most favorable view of the evidence.  All doubts and inferences must be resolved against the moving party.[7]

The parties stipulated that Exhibits 1-11 were admissible in this matter, but reserved the right to object to exhibits with respect to their probative value and the weight to be given them.[8]  The parties agree that the only issue to be decided is whether the Department is entitled to recover medical assistance payments in the total amount of $6,229.44 made to MILS for personal care services provided to T.A., a client of MILS, by his sister, an authorized personal care assistant (“PCA”).  The Department alleges that this amount must be repaid because personal care services were provided to T.A. at his sister’s residence rather than at T.A.’s own residence.[9]  MILS contends that the amount was properly paid because spending time at his sister’s house was a normal life activity for T.A. and his health and safety would have been jeopardized without the provision of personal care. Neither party believes that there are genuine issues of fact remaining for hearing in this case.  Both parties agree that the case may be decided based upon the stipulated evidence and that the sole issue is a question of law.  This case is appropriate for resolution by summary disposition.

Background

The Minnesota Medical Assistance program provides funding for medically necessary health services for low-income persons and is administered by the Department of Human Services.[10]  This contested case proceeding arises under the Department’s Surveillance and Integrity Review Section (“SIRS”) program.  The federally-mandated SIRS program is responsible for conducting post-payment reviews and guarding against improper Medical Assistance payments.[11]  State law authorizes the Commissioner of Human Services to adopt rules that create general criteria and procedures “for the identification and prompt investigation of suspected medical assistance fraud, theft, abuse, presentment of false or duplicate claims, presentment of claims for services not medically necessary, or false statement or representation of material facts by a vendor of medical care, and for the imposition of sanctions against a vendor of medical care.”[12]  Rules adopted by the Department with respect to the SIRS program establish standards for the Department’s identification and investigation of suspected fraud, theft, or abuse, impose certain requirements with respect to the health service and financial records of vendors of health services, and require notice and the opportunity for hearing if an appeal of the Department’s determination is filed.[13]  The rules also empower the Commissioner to seek monetary recovery from vendors and recipients if payment was the result of fraud, theft, abuse, or error.[14]

The Commissioner of Human Services and the Commissioner of Health are jointly responsible for promulgating rules that apply to the licensure of personal care services provided under the Medical Assistance program.[15]  The conditions under which personal care services may be reimbursed by the Medical Assistance program are discussed in Minn. Stat. § 256B.04, subd. 16, and rules that are codified in Minn. R. 9505.0335.  Personal care services have been a “covered service” under the Medical Assistance program since the 1970’s.[16]  Personal care services include assistance with eating, bathing, dressing, personal hygiene, meal preparation, and household services that incidental to the care provided.[17]  The term “personal care assistant” is defined in Minn. Stat. § 256B.0625, subd. 1(e), to mean a person who is at least 18 years old (with certain exceptions) who meets training and background check requirements and is able to effectively communicate with the recipient and personal care provider organization, provide covered personal care services according to the care plan, respond appropriately to recipient needs, and report changes in the recipient’s condition to the supervising qualified professional.  Personal care services eligible for payment under the Medical Assistance program are identified in Minn. Stat. § 256B.0625, subd 4(a).  To be a PCA, an individual must show that (1)  he or she has completed a nursing assistant training program or its equivalent, a homemaker/home health aide pre-service training course, an accredited educational program for registered nurses or licensed practical nurses, or a training program that provides the individual with skills required to perform PCA services, or (2)  the personal care provider has determined  that the individual has the necessary skills by virtue of training and experience to perform personal care services.[18]  Parents or adult siblings of an individual client may provide PCA services if they meet one of the requirements for PCAs and satisfy the relative financial hardship waiver criteria set forth in Minn. Stat. § 256B.0627, subd. 4(b)(10).[19]  In 1988, the governing statute was amended to require that personal care provider organizations be the enrolled Medical Assistance providers of personal care assistant (“PCA”) services, rather than the individual PCAs themselves.[20]

Appellant Minnesota Independent Living Services (“MILS”) is a personal care provider organization that employs PCAs.  The family of T.A. began receiving PCA services through MILS in approximately August, 1997.[21]  At that time, T.A. (who was born on November 24, 1985) was 11 years old and lived with his mother (J.A.), his father, and two sisters in Lino Lakes, Minnesota.[22]  T.A. suffers from Down Syndrome and has some autistic traits.[23]  Based upon a recent assessment, his current developmental age is between one and four years old.[24]  T.A. is afraid of the dark and has severe phobias about plants.[25]  He communicates by way of gestures, some sign language, and a few words.[26] 

T.A. requires assistance with virtually every aspect of daily living.[27]  When he is uncomfortable in a situation, T.A. engages in self-injurious behavior, vomits, screams, and hits and kicks others.[28]   It is difficult for T.A. to experience changes in routine and changes in location, and he frequently resists getting in the car and leaving his home.  As a result, it is difficult for his family to take him to many places.[29]  For example, T.A. can become so terrified about getting into the car that he makes himself physically ill and vomits.[30]  During his last visit to the doctor’s office, T.A. threw books in the lobby because he was upset about being there.[31]  T.A. also  resists getting on the school bus if a different driver is driving, new schoolmates are present, or the driver stops in a different spot than usual.  Sometimes T.A. refuses to board the bus and stays home from school.[32]

The PCA services at issue in this case were provided between September 26, 1997, and July 12, 1998, by T.A.’s older sister, J.W.  J.W. was approximately 22 years old at that time.  She and her husband lived in their own separate residence in Pine City, Minnesota.[33]  J.W. became a PCA for MILS in September 1997 and filed a request for a relative hardship waiver with DHS.[34]  The waiver request bore a notation that J.W. would provide PCA services on weekends and the family of T.A. would provide care during the week.[35]  During the time period relevant to this case, nurses from MILS visited the residence of T.A. on several occasions.[36]  J.W., J.A., and T.A. were typically the only family members present during these visits.  The nurses did not visit the home of J.W.[37]

J.W. provided PCA services for T.A. both at the family home in Lino Lakes and at her residence in Pine City during the time period in question.  Despite the notation on the waiver request form, J.W. provided PCA services to T.A. both during the week and on weekends.  J.W. drove to the family home early in the morning on days that T.A. was attending school to assist in caring for T.A. and getting him ready for school, and returned after school to provide personal care services to him as well.  In the summer, when school was not in session, J.W. sometimes brought T.A. to her home for the weekend and provided PCA services to him while he was there.[38]  It is only these weekend hours that are at issue in this case. 

Despite the fact that T.A. generally resisted leaving his home in Lino Lakes, he liked to visit J.W.’s home and would not resist going there.  T.A. enjoyed the Celtic music that J.W. played in her home.  He also liked to play with J.W.’s two dogs, swim in her pool, interact with her husband, and run around in her large back yard (because trees surround her property but are not right in the yard, T.A.’s plant phobia was not triggered).  Both J.A. and J.W. testified that it was beneficial for T.A. to leave his home and enter a different environment, and the Department stipulated during the motion argument that it was beneficial for T.A. to go to J.W.’s home, school, and other places.  While T.A. would run around anxiously and hit people in other settings, he would go willingly to J.W.’s home “without trauma” and there was no one there whom he could hurt.[39]  J.A. held two jobs during the relevant time period, which gave her little opportunity to sleep until Friday and the weekend.[40]  MILS stipulated at the time of the motion argument, and it is clear from the depositions of J.W. and J.A., that one of the reasons J.W. took T.A. to her home during some weekends in the summer was to provide J.A. with a break.  However, it is also evident that J.W. took T.A. to her home in order to spend time with him and encourage the “normal” social behavior of leaving his home.[41] 

On September 2, 1998, an Anoka County Human Services social worker notified the SIRS unit that T.A. was receiving his care on the weekends at J.W.’s home in Pine City to give T.A.’s mother a break from T.A.  The social worker reported that T.A.’s family told her that MILS had told them that PCA services were allowable at the PCA’s home.[42]  The Department thereafter investigated the provision of T.A.’s PCA services.  The Department conducted telephone interviews with J.A. and J.W., reviewed MILS records, and talked to MILS representatives.  MILS representatives told the Department that they were unaware of the Department’s view that PCA services could not be provided in the PCA’s home.  The Department decided that the type of services that were being provided at J.W.’s home were more akin to respite services than to PCA services.  The Department ultimately sought to recover $6,229.44, the amount expended for 504 hours of PCA services provided by J.W. to J.A. on weekends.[43]

T.A. no longer receives PCA services.  He also does not visit J.W.’s home very often any more.[44]

Relevant Statutory and Rule Provisions

The parties agree that it is important to consider Minn. Stat. § 256B.0625, subd. 19a, in deciding the issue in this case.  That rule provision provides in pertinent part as follows:

Personal care services.  Medical assistance covers personal care services in a recipient’s home.  To qualify for personal care services, recipients or responsible parties must be able to identify the recipient’s needs, direct and evaluate task accomplishment, and provide for health and safety.  Approved hours may be used outside the home when normal life activities take them outside the home and when, without the provision of personal care, their health and safety would be jeopardized. . . . Total hours for services, whether actually performed inside or outside the recipient’s home, cannot exceed that which is otherwise allowed for personal care services in an in-home setting according to section 256B.0627. . . . All personal care services must be provided according to section 256B.0627.  Personal care services may not be reimbursed if the personal care assistant is the spouse or legal guardian of the recipient or the parent of a recipient under age 18, or the responsible party or the foster care provider of a recipient who cannot direct the recipient’s own care [with certain exceptions for foster care providers].  Parents of adult recipients, adult children of the recipient or adult siblings of the recipient may be reimbursed for personal care services if they are not the recipient’s legal guardian and are granted a waiver under section 256B.0627.

(Emphasis added.)

Minn. Stat. § 256B.0627 is also relevant to this proceeding.  Subdivision 2(4) of that statute specifies that “[h]ome care services covered under this section include . . . personal care services under section 256B.0625, subdivision 19a . . . .”  The term “home care services” is defined in subd. 1(c) of section 256B.0627 to mean services “provided to the recipient at the recipient’s residence that is a place other than a hospital or long-term care facility or as specified in section 256B.0625.”

Minn. R. 9505.0295, subp. 1, defines “home health service” to mean “a medically necessary health service” that is “ordered by a physician,” “documented in a plan of care that is reviewed and revised as medically necessary by the physician at least once every 60 days,” and “provided to the recipient at his or her residence that is a place other than a hospital or long-term care facility,” with certain exceptions not relevant here.  (Emphasis added.)  In addition, Minn. R. 9505.0335, subp. 1(E), defines “personal care service” to mean a “health service . . . ordered by a physician and provided by a personal care assistant to a recipient to maintain the recipient in his or her residence.”

Discussion

The Department points out that Minn. Stat. § 256B.0625, subd. 19a, explicitly states that “medical assistance covers personal care services in a recipient’s home”[45] and that all personal care services must be provided “according to section 256B.0627.”  The Department argues that personal care services are included as a subset of home care services, and that home care services must also be provided to the recipient at his or her residence.[46]  Moreover, the Department emphasizes that the rule governing personal care services defines such service as a health service provided by a PCA “to maintain the recipient in his or her residence.”[47] 

The Department contends that the language of the statute is clear and not susceptible to more than one reasonable meaning, and urges that the plain meaning be given effect.[48]  The Department argues that the rule further supports the requirement that PCA services be provided in the recipient’s home and demonstrates that the Department’s determination in this case was reasonable.  Thomas Neumann, a senior investigator for the SIRS unit, filed an affidavit in which he indicated that personal care services were initially established for mentally able adults who could direct their own care but required assistance with activities of daily living.  He asserted that the program was established to maintain these adults in their own homes as the least restrictive alternative and because it would cost less to maintain them in their own home rather than a nursing facility.  Later, more people were brought into the program, including children, developmentally disabled persons, and people who could not direct their own cares.[49]  Mr. Neumann further stated in his affidavit that the Department has taken the position since the inception of the PCA program that PCA services must be provided in the home of the client/recipient and has consistently told providers that PCA services must be provided in the home of the client/recipient.[50]  Mr. Neumann argues that the policy reasons that support this requirement include the fact that the recipient will be allowed to live in his or her own home like more able members of society; the likelihood that the PCA will be distracted from their personal care duties will be reduced; the potential for abuse will be minimized because a responsible person who resides with the recipient will direct the cares of the recipient rather than the PCA; and the possibility that a PCA will care for more than one recipient at the same time will be minimized.[51]  The Department emphasizes that J.W. admitted during her deposition that she did some personal activities such as grocery shopping and household chores at the same time she was supposed to provide PCA services to T.A., and argues that these activities illustrate why the Department does not allow PCA care to be provided in the PCA’s home.

In response, MILS contends that Minn. Stat. § 256B.0625, subp. 19a, specifically authorizes the provision of personal care services to a recipient outside of his home when normal life activities take him outside of his home and when his health and safety would be jeopardized without the provision of such care.  MILS argues that the purpose of care made available by medical assistance is not to confine care recipients to their homes but to allow them to reside in their homes instead of in institutions as the least restrictive alternative and help them live in the community.  In this regard, MILS emphasizes that Minn. Stat. § 256B.0627, subd. 1(g), specifies that recipients of personal care services should be assisted by their “responsible party” (here, T.A.’s mother) to “live in the community.”  MILS argues that it was normal for T.A. to spend time at J.W.’s home and receive personal care services while he was there, and asserts that T.A. should be allowed to enjoy interpersonal contacts with family members and recreational activities in another environment.  MILS asserts that the fact that J.W.’s provision of PCA services to T.A. at her home provided a beneficial break for T.A.’s mother is a normal result of the program and is irrelevant to this proceeding.

The Department acknowledges that the statute provides an exception permitting some PCA services to be provided outside the recipient’s home provided that they are part of a “normal life activity,” but contends that the PCA services provided at J.W.’s home were not part of a normal life activity.  In this regard, the Department contends that the mere fact that J.W. and J.A. think it was “normal” for T.A. to be at J.W.’s home or the fact that it became routine for him to do so does not address the legal question of whether it was a “normal life activity” within the meaning of the statute.  The Department argues that “it can hardly be considered a normal life activity for a person to spend a great amount of their time at their PCA’s home.”[52]  The Department alleges that, if the PCA service hours provided outside T.A.’s home were considered part of a normal life activity, that provision would effectively swallow the statutory language that Medical Assistance covers PCA services provided “in a recipient’s home.”  The Department contends that MILS’ interpretation would allow any care outside the home to be reimbursable, and would negate the necessity for the in-home requirement set forth in Minn. Stat. § 256B.0625.  The Department asserts that a reasonable interpretation of the normal life activity provision would allow the PCA to assist a client in going to the doctor for a check-up or take the recipient on a trip to a store.  While the Department acknowledges that it is a normal life activity for a person to visit his sibling’s home and a PCA may accompany the person on such a visit, it contends that that is not what occurred here.  Instead, the Department asserts that J.W.’s home became T.A.’s out-of-home respite placement and thus exceeded the scope of the PCA statute. 

The Department points out that T.A. goes to J.W.’s home only infrequently now that she no longer receives payment for providing PCA services to him, and contends that this undercuts MILS’ argument that the visits to J.W. were routine and therefore normal for T.A.  In addition, the Department argues that MILS’ argument is weakened by the fact that the only place T.A. was taken was to J.W.’s home and contends that he was not taken to other “out of the home activities that might be normal life activities for someone T.A.’s age,” such as going to a park, on a picnic, to the zoo, or for a meal at a fast-food restaurant.[53]  The Department states that the point of personal care services is to allow people who would otherwise have difficulty in living a normal life because of their disability or medical condition the opportunity to engage in as many normal life activities as possible.  The Department contends that a “close reading of the deposition transcripts reveals that T.A. was able to do well when taken places other than [J.W.’s] and his own home,” and continues to argue that “being able to leave your home to go to a store or to the mall to shop or to get out into the wider world are the sorts of normal life activities that the PCA system was meant to reimburse.”[54]

Based upon a careful consideration of these competing arguments, the Administrative Law Judge recommends that MILS’ motion for summary disposition should be granted because the PCA services were provided to T.A. in conjunction with normal life activities that took him outside of his home, and his health and safety would have been jeopardized without the provision of such care.  The services thus were properly provided in accordance with the express provisions of Minn. Stat. § 256B.0625, subd. 19a.  The Department’s argument that spending time at a PCA’s home is not a normal life activity ignores the fact that, in this case, the PCA was the recipient’s sister.[55]  Based on both the stipulated evidence in this case and as a matter of law, visiting a sibling’s home must be deemed to constitute a normal life activity.  J.W. testified during her deposition that it was a normal activity for T.A. to visit her home during the period in question.  In addition, it was not a traumatic experience for T.A. to visit J.W.; in fact, “[her] house was one place he didn’t have a problem going to.”[56]  T.A.’s mother testified that going to J.W.’s house was “[p]art of a routine he’d done before . . .”[57]  Neither J.A. nor J.W. have any stake in this proceeding, since MILS has indicated that it will not seek reimbursement from J.W. should the Department prevail in this proceeding.  There is no evidence in this record that it was not a normal life activity for T.A. to spend time with his sister at his sister’s home during the time period in question here.  In addition, even though he currently visits J.W. less frequently, there is no evidence in this record that it is still not a normal life activity for T.A. to visit his sister’s home even if it is on a less frequent basis.  Indeed, the fact that T.A. still spends some time at his sister’s home even though she is no longer his PCA tends to prove that it is and always was a normal living activity for him to visit her.  There is no support in the statute or rules for the Department’s narrow interpretation that the “normal life activity” provision must be limited to trips to the store or doctor appointments.  In addition, the Department’s arguments overlook T.A.’s extremely limited ability to adapt to new surroundings and his intolerance of some of the activities that the Department believes he should be doing.[58]  The stipulated evidence contains ample evidence that T.A. continues to have significant difficulty in new surroundings.

The Department acknowledged in the memorandum supporting its motion that “it is a normal life activity for a person to visit his sibling’s home, and that a PCA may legitimately accompany the person on such a visit.”[59]  The Department contends that that is not what occurred here, because J.W.’s home became T.A.’s out-of-home respite placement.  The Administrative Law Judge finds, however, that the facts do not support a conclusion that respite care was the primary or sole reason for T.A. going to J.W.’s home.  Both J.W. and J.A. admitted during their depositions that one reason for T.A.’s weekend visits were to give J.A. a break.  As MILS points out, however, all PCA services provide a break to a parent who is the normal caregiver of a child with a disability.  Moreover, it is evident that this was not the only reason for the visits. As the parties have stipulated, it was beneficial for T.A. to leave the home where he spent nearly all of his time and go to a different environment.  J.A. testified:

[A]nything other than being at home all the time is, we feel, to his benefit.  If I could take him shopping every day, I would do it, but he won’t tolerate it.  If I could take him to the park, I would do it, but he doesn’t enjoy being there.  He likes [J.W.].  He likes [J.W.’s] husband, [T.].  We have a family of girls, so for him to be around more guys, he likes guys and he doesn’t see a lot of them.  So [J.W.’s] husband is good with [T.A.].  He likes playing with her dogs.  She’s got two big dogs that run through the yard and he would run with them.  So versus having him sit at home and play with cars and trucks, if he can be outside running across four acres of land, that’s to his benefit I think.[60]

In the view of the Administrative Law Judge, the benefits that were associated with having T.A. leave his home environment should not be disregarded.  The statute and rules relating to the provision of personal care services clearly are designed to enable individuals to live in the community rather than in institutions.  The efforts made by T.A.’s family to have T.A. become accustomed to going to J.W.’s home could, over time, result in T.A. becoming more used to leaving his home for other destinations and more able to participate in the community and avoid institutionalization.

Moreover, it is clear that T.A.’s health and safety would have been jeopardized during the time he spent at J.W.’s home if he had not been provided personal care services.  T.A. needs constant care and supervision.  J.A. testified during her deposition that someone is typically with T.A. all of the time:

We don’t dare leave him.  The dog barking can set him off or the telephone ringing or the water pump going on.  There’s so many little quirks that he has that he’s not tolerant of a lot of normal, everyday sounds.  It’s usually a sound that will trigger something for him.[61]

T.A.’s developmental age was recently assessed as being between one and four years old and his condition has not changed much over time.  Both J.A. and J.W. testified that T.A. engages in head banging behaviors and hits himself and others if he is upset about something.  It is evident that T.A. needs assistance with virtually all aspects of daily living, and his health and safety would have been jeopardized if personal care services had not been made available to him while he was at J.W.’s home.  It would not be reasonable to require as a matter of law that a family member must be responsible for providing personal care services to his or her brother in all instances, just by virtue of being a family member.  Thus, the Judge rejects the Department’s argument that PCA services were not required to protect T.A.’s health and safety at J.W.’s home because J.W. was obligated to provide those services in her role as sister rather than PCA.  Here, PCA services were approved for T.A., and J.W. was an authorized provider of such services, having obtained the requisite training and waiver.  There has been no showing that the care provided to T.A. was in any way compromised by virtue of it being provided at his sister’s home.  The Judge concludes that the recipient should be able to receive PCA services at the home of a family member if visiting that home is a normal life activity, as it was here.

This interpretation of the statute and rules would not, as the Department fears, allow any care provided outside the home to be reimbursable or effectively overrule the statutory language that PCA services generally be provided in the recipient’s home.  It would simply recognize that PCA services could be provided by an authorized PCA/sibling where the recipient visits the sibling as part of a normal life activity.  Recipients who have PCAs who are not related to them would obviously face a more difficult challenge in showing that visiting the PCA was a normal life activity for them.

B.L.N.