Home-care workers awarded back pay

A Thurston County jury has found that the state Department of Social and Health Services (DSHS) shortchanged about 22,000 in-home health-care workers when it instituted across-the-board benefit cuts, awarding the plaintiffs $57 million in back pay.

The award came Monday after a three-week trial, during which the plaintiffs' attorneys argued that DSHS breached the contract it had with in-home health providers.

In 2003, the DSHS decided to cut payments by 15 percent to Medicaid beneficiaries who had caregivers living in their home. The state argued that taxpayers shouldn't have to pay in-home caregivers — many of whom were relatives — for tasks they would perform for their own households,

According to attorney Greg McBroom, who represented the caregivers in the class-action lawsuit, the state illegally cut benefits by about 15 percent to DSHS clients and their providers without first assessing their individual needs.

"The state knew that many of these people had family, relatives and friends who would take care of them no matter what," McBroom said. "They knew they could take advantage of them."

The so-called shared-living-expense cuts, implemented in 2003, were based on what Assistant Attorney General Carrie Bashaw called a "common sense idea."

Bashaw said the state reasoned there were jobs, such as shopping, cooking and doing laundry, that providers would be doing regardless of whether they were caring for the Medicaid clients and that the state shouldn't have to pay for them.

However, McBroom said, that was far from the truth.

Many Medicaid beneficiaries had medical conditions that required extensive care, he said.

One provider, for example, gave her now-deceased daughter intensive, 24-hour care, feeding her through a tube and cleaning her ileostomy bag, he said.

"The state was trying to say she was personally benefiting from the payments when she was trying to keep her daughter alive," he said.

"In fact, the state was nickel-and-diming these people when they were saving millions of dollars by having them cared for at home," McBroom said.

In 2007, the state Supreme Court ruled that the shared-living rule violated federal Medicaid law stating all beneficiaries should be treated equitably. The state abandoned the cuts but did not pay back clients and providers for the four years of lost benefits.

McBroom said the state erred by making the cuts without first assessing the individual needs of each client, as required by law.

"It's a big mess that they brought upon themselves," McBroom said. "They were told in 2004 by advocates that what they were doing was illegal and they ignored it."

McBroom said the $57 million, while the largest award in the state, is no more than what the state would have paid the 22,000 in-home care providers over four years, had the cuts not been made.

Attorneys' fees have not been determined, he said. They will be negotiated by attorneys from both sides and then approved by Thurston County Superior Court Judge Thomas McPhee.

Bashaw said the state has not yet decided whether it will appeal the award.

Christine Clarridge: 206-464-8983 or cclarridge@seattletimes.com.

Information from The Associated Press is included in this report.