Link to Mo. Sup. Ct. Opinion
I. Introduction
In January, 2009, the Missouri Supreme Court found that a provision of the legislatively overhauled PersonalCare Assistance (PCA) program, which excluded individuals who had a legal guardian appointed for reasons of mental disability violated the Americans with Disabilities Act (ADA). Appellant, a woman with a disability who had received benefits under the PCA program before the change, was subsequently denied PCA benefits after the amendment’s passage. The Court did not decide whether funding Appellant received under the Missouri Health Net program was a “reasonable accommodation” under the ADA.
Andrea Bechtel, 39, had physical and mental disabilities that confined her to a wheelchair. In 1993, a Missouri court appointed Betchel's mother, Barbara Bechtel, as Andrea's legal guardian. Since then, Barbara provided physical care to Andrea and received about $1,500 a month from the Department of Social Services for such care. Initially, Barbara qualified under the Personal Care Assistance (PCA) program to receive the monetary benefits for the care of Andrea; however, in 2005, the Personal Care Program was overhauled to save costs. A new provision excluded “individual[s] with a legal limitation of his or her ability to make decisions, including appointment of a guardian.” After the change, the Missouri Department of Social Services denied Bechtel PCA funds. She continued to receive benefits under the Missouri Health Net program.
The Missouri Supreme Court held that because the exclusion of PCA benefits was due to Bechtel's guardian appointment, and her guardian appointment had been based on her mental disability, she was denied benefits in violation of the Americans with Disabilities Act (ADA). The state would have to prove that it had taken steps to reasonably accommodate Bechtel, as the ADA required. Because the Department of Social Services did not plead the equivalence of the two programs at the trial level, the court did not reach a holding on whether she had a reasonable accommodation from the Missouri HealthNet program. The court held that the Department of Social Services erred in denying Bechtel benefits because the statutory “legal guardian” exclusion was invalid.
III. Legal Background
Under Missouri law, the Missouri Department of Social Services is required to provide personal care assistance to qualified Medicaid participants who could live independently but for a personal care assistant. Generally, these personal care services included such activities as housekeeping or personal grooming. In a 2006 amendment, the Missouri General Assembly modified the definition of “consumer” under the law to exclude those with legally impaired decision making faculties.
Because the PCA program is funded through federal funds via Medicaid, the program must comply with the Americans with Disabilities Act. The ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” A successful breach under the ADA is shown by proving (1) plaintiff is a qualified individual with a disability; (2) she was “otherwise qualified for the benefit in question; and (3) (s)he was excluded from the benefit due to discrimination based upon disability.”
The overall policy goal of the ADA’s “anti-discrimination principles culminate in [the] integration mandates, which direct states to ‘administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.’”
In the 1994 case of Easley v. Schneider, the Third Circuit dealt with a case similar to Bechtel. Pennsylvania enacted a legal guardianship exclusion for its home health care aid program. The program itself had similar goals to the Missouri Personal Care Program. The Third Circuit held that the exclusion did not offend the ADA, because the state was only discriminating between groups of persons with disabilities, not between a disabled group and the non-disabled.
Five years later, the United States Supreme Court overruled the logic underpinning the Earley case in Olmsted v. L.C. ex rel. Zimring. In that case, two mental health patients were denied community-living assistance and institutionalized. The state argued that there was no similarly situated group that was receiving preferential treatment over the petitioners under the program. The United States Supreme Court rejected this argument and held that “[t]he fact that one person in the protected class has lost out to another person in the protected class is thus irrelevant, so long as he has lost out” because of the person’s class characteristic. Therefore, an ADA violation turns on whether the reason a person was denied a benefit was based on the person’s disability, which qualifies them with protected class status.
Litigation on the new PCA law has been sparse since its enactment in 2005. In Lowe v. Dep’t of Soc. Servs., the Western District Court of Appeals upheld the denial of PCA benefits to Richard Lowe, a man who received PCA benefits but suffered a head injury that necessitated the appointment of his mother as legal guardian. The Department of Social Services denied his PCA benefits because he could not direct his own care. Lowe unsuccessfully argued that the decision was arbitrary and capricious. He did not argue that the exclusions themselves violated the ADA. Bechtel is the first case to do so.
IV. Commentary
There are two policy rationales underlying the PCA program. The first is to promote independent living of the disabled. Second, there is a cost calculus rationale – a customer qualifies for the PCA program only if paying for an assistant would be less costly than institutionalizing the individual with the disability. The overhaul of the PCA program was predicated on the assertion that the changes would lead to overall cost savings. The legal guardian exclusion would seem to meet both policy rationales.
First, it is difficult to conceive of someone who is subject to a guardianship living independently. The ability to make one's own decision seems a necessary condition to one's independence. An exclusion of such persons who could not achieve independence would seem to preserve the overall goal of the program to promote independent living. The second goal would necessarily follow. If the person is not really living independently, then it could be argued that benefits given to them are wasted. Yet, denied claimants wishing to become prospective litigants should be cautioned. The “legal guardian” exclusion was one of many tools that the Department of Social Services can exercise under Chapter 208 to exclude a PCA claimant. There is an eligibility requirement that the person must be "able to direct his or her own care." The state is also “allowed to discontinue services if a consumer becomes unable to self-direct services.” These exclusions are stated in general terms, and the Court in Bechtel did not extend its holding to address the issue of whether they would violate the ADA. It is likely the existence of legal guardianship could be used as a factor to prove exclusion under these other Chapter 208 provisions.
In support of this, the Department of Social Services could argue that the MO. REV. STAT. 208.900 provision at issue in Bechtel violated the ADA because of its bright line nature. An argument follows that if guardianship was merged into a factor-based test under the other provisions of Chapter 208, it would be able to survive the ADA analysis. A counter argument to this is that if the state is basing its exclusion on an impairment of mental faculties whether through a factor-based or a bright line test, it is a decision based on one's disability in violation of the ADA and Olmstead.
Last, the Missouri Supreme Court did not decide whether there was reasonable accommodation to Bechtel through the other programs that Missouri offered. It is possible that the Department of Social Services could show that Bechtel was to receive the same amount of aid under a different program. Then she would be “reasonably accommodated” in compliance with the ADA. In both Lowe and Bechtel, the department argued that there were other programs that the plaintiff qualified under even though the claimants were precluded from receiving PCA funds.
A court should reject such an argument. Assuming claimants are not allowed to receive funds from both programs at the same time, a mere equivalence in payments would probably not be a reasonable accommodation. Each Department of Social Services program has different requirements and responsibilities for the claimant.
The Bechtel Court correctly accorded with the Olmsted standard to defeat the legal guardianship exclusion of the PCA program. The future of the other exclusions in Chapter 208 is in question in the aftermath of the decision, and Bechtel gives denied claimants a hope that litigating denials under the ADA may yield favorable outcomes. Inviting such litigation may defeat the initial aim of the legislature and increase costs for the program.
- Brian T. Bear
[1] No. SC89416 (Mo. Jan. 13, 2009) (en banc). The West reporter is Bechtel v. Mo. Dep’t. of Soc. Servs., 274 S.W.3d 464 (Mo. 2009) (en banc).
[2] The parties stipulated to all the facts at the trial court level. The entire case turned on questions of law.
[3] See Brief of Appellant, Bechtel v. Dep’t of Soc. Servs., 2008 WL 3852935, *1-*2 (Mo. 2009).
[4] MO. REV. STAT. § 208.900(1) (2008).
[5] Id. at § 208.201.
[6] Id. at § 208.900(1).
[7] Id. at § 208.900(8)(a)-(g).
[8] Id. at § 208.900(1).
[9] McNeil-Terry v. Roling, 142 S.W.3d 828, 833 (Mo. App. 2004) (“those [states that participate in Medicaid] are required to comply with federal statutory and regulatory requirements”); see also Harris v. McRae, 448 U.S. 297, 301 (1980) (“once a State elects to participate [in the Medicaid program], it must comply with the requirements of Title XIX”).
[10] 42 U.S.C § 12132 (2008).
[11] Randolph v. Rodgers, 170 F.3d 850, 858 (8th Cir. 1999).
[12] Frederick L., et al. v. Dep’t. of Pub. Welfare of Commonwealth of Penn., 364 F.3d 487, 491 (3rd Cir. 2004) quoting 28 C.F.R. § 35.130(d).
[13] Easley v. Snider, 36 F.3d 297 (3rd Cir. 1994).
[14] Id. at 299.
[15] Id. at 300.
[16] Id. at 306.
[17] Olmsted v. L.C. ex rel. Zimring, 527 U.S. 581, 601 (1999).
[18] Id. at 593-94.
[19] Id. at 598.
[20] See id. at 598 n.10.
[21] Lowe v. Dep’t of Soc. Servs., 260 S.W.3d 848 (Mo. App. 2008).
[22] Id. at 849.
[23] Id. at 851.
[24] Id. at 850.
[25] See MO. REV. STAT. § 208.903(1)-(8).
[26] MO. GOVERNOR'S MESSAGE, Blunt Keeps Promise to Missouri Voters Signing Meaningful Reform Bills (Apr. 26, 2005).
[27] MO. REV. STAT. § 208.903(1)(4).
[28] Lowe, 260 S.W.3d at 851 quoting Id. at § 208.909. While the statute does not explicitly use the term self-direction, there are five specific tasks that are required of the consumer:
“(1) Supervising their personal care attendant; (2) Verifying wages to be paid to the personal care attendant; (3) Preparing and submitting time sheets, signed by both the consumer and personal care attendant, to the vendor on a biweekly basis; (4) Promptly notifying the department within ten days of any changes in circumstances affecting the personal care assistance services plan or in the consumer's place of residence; and (5) Reporting any problems resulting from the quality of services rendered by the personal care attendant to the vendor. If the consumer is unable to resolve any problems resulting from the quality of service rendered by the personal care attendant with the vendor, the consumer shall report the situation to the department.” MO. REV. STAT. § 208.909.1 (1) – (5)
[29] See Lowe, 60 S.W.3d at 850; see Bechtel, No. SC89416.
