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From Health Law Daily, May 19, 2015

No shortcuts, no piggyback onto class action

By Michelle L. Oxman, J.D., LL.M.

An elderly Medicaid beneficiary whose personal care services were disrupted could not benefit from the orders entered in a 22-year-old class action. Relief in the class action was limited to class members. The beneficiary was not a member of the class because the disruption of her services was not caused by the District of Columbia (D.C.) Medicaid agency, but by the provider’s failure to pay the personal care worker. Although she might be entitled to similar relief, the beneficiary had to pursue it in her own action against the District (Salazar v. District of Columbia, May 18, 2015, Kessler, G.).

The beneficiary’s complaint. Magnolia Stevenson received personal care aid through a home and community-based services waiver that served the elderly and persons with disabilities. The Medicaid agency had determined that she was eligible for eight hours of assistance per day, seven days per week. The D.C. Medicaid agency contracted with ASAP Services (ASAP), which employed the personal care worker assigned to Stevenson. In the fall of 2013, Stevenson’s caregiver told her that ASAP had written her bad checks. In December 2013, the worker told Stevenson’s daughter, Deborah, that she could not continue to care for Stevenson because she had not been paid.

From December 14 to 23, 2013, Deborah made repeated attempts to get help for Stevenson through ASAP, the D.C. Medicaid agency, and the D.C. Health Care Ombudsman’s office. Meanwhile, she paid the PCA worker directly from her own funds. On December 23, 2013, in a conference call between the daughter, the Ombudsman’s office and ASAP, the ASAP representative admitted that they had not provided Stevenson with PCA services since December 14 and that they could not do so. Stevenson filed an appeal with the agency.

In late January, ASAP offered to resume providing services for Stevenson. Deborah rejected the offer because the D.C. government had found ASAP “grossly deficient” in caring for its clients. She continued to pay the former ASAP employee directly for another three months. Although Deborah submitted multiple claims for reimbursement to the Medicaid agency, the agency did not reimburse her.

The administrative hearing. The agency held a hearing on the appeal several months later. The administrative law judge (ALJ) ruled that the agency’s responsibility was discharged when ASAP offered to provide services for Stevenson, and Deborah was entitled to reimbursement only for the period that ASAP was unavailable. The ALJ’s decision informed Stevenson that if she disagreed with the decision, she could seek review at the D.C. Court of Appeals. Instead, Stevenson’s attorney filed a request to enforce the order in the class action.

The class action. The Salazar action began in 1993. The court had certified five distinct subclasses of applicants and beneficiaries: (1) newborns who did not receive immediate coverage through their mothers’ Medicaid numbers, though they were eligible at birth; (2) individuals who could not apply for Medicaid at disproportionate share hospitals (DSH) or federally qualified health centers (FQHC); (3) individuals whose applications were not processed within 45 days; (4) individuals whose benefits were discontinued without notice; and (5) individuals who had not been notified of their right to early and periodic screening, diagnosis and treatment (EPSDT) services, which must be available to beneficiaries under the age of 21.

The orders for relief in the class action included a procedure by which class members who had paid for services could obtain reimbursement and seek review in the district court if they were dissatisfied. Stevenson sought relief in the district court pursuant to the order in the class action.

The court proceedings. D.C. contended that Stevenson did not have standing because she had not been injured. Because Deborah had arranged for the services and paid for them, only Deborah would have a claim. The court rejected that argument because as a late-stage Alzheimer’s patient, Stevenson could not manage her own affairs, so Stevenson’s daughter had acted on her behalf in requesting reimbursement in accordance with 42 C.F.R. sec. 431.246. The court further noted that the right to reimburse family members for expenses that Medicaid should have paid was well established.

Membership in the class. Although Stevenson and Deborah had established a violation of their rights, they could not obtain relief in the class action because Stevenson was not a member of the class. She was not eligible for EPSDT services, and the agency did not fail to process her application for benefits in a timely manner. The agency had not discontinued her services; the disruption resulted from the failures of the provider to pay its staff. Only Medicaid applicants and beneficiaries whose claims fell within one of the five subclasses could obtain relief through the processes established in the class action. Therefore, the court denied Stevenson’s requests for reversal of the ALJ’s decision and for reimbursement through the procedure available to class members.

The case is No. 93-452 (GK).

Attorneys: Bruce J. Terris (Terris, Pravlik & Millian, LLP) for Oscar Salazar. Alan S. Block (Bonner Kiernan Trebach & Crociata, LLP) and Bradford Collins Patrick, Office of the Attorney General for the District of Columbia, for District of Columbia.

Companies: ASAP Services

MainStory: TopStory MedicaidPaymentNews HomeNews DistrictofColumbiaNews

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