Family personal care assistants (PCAs), who take care of disabled family members, breathed a little easier after the Minnesota Court of Appeals ruled at the end of 2012 that the law cutting pay for relatives who serve as PCAs was not constitutional. In a deal made during the government shutdown of 2011, the Minnesota legislature had amended a law that resulted in cutting the wage of relative PCAs by 20 percent. In January, the Department of Human Services decided not to appeal the ruling.
In Minnesota, PCA Choice allows people with disabilities or others needing assistance to choose their PCA, allowing family members to work for a specified number of hours as PCAs. The work that PCAs perform helps people live at home who may otherwise live in a facility, such as a group home or nursing home. Their job duties are varied and consist of daily activities, such as grooming, preparing food, giving medicine, and transportation. The type of assistance given depends on the needs of the person.
Karen Urman cares for her son Ziggy Norberg, 19, who has spinal bifida. When he turned 18, he chose his mother to be his PCA. Urman explained, “He’s very comfortable having me to take care of stuff for him. Some of that stuff is intimate, like bathing. I think it’s important that they get to choose who they’re more comfortable with.” She gave up her career in tax preparation to help him and, with two other children in the family, she said that finances are tight. Although Urman agreed that she would have continued to care for him even if her wages were cut, she said that she couldn’t believe it when she first heard about the law. “It’s so blatantly unfair,” she added. Urman considered obtaining a second part-time job as her PCA hours are part time, but she didn’t know how she could fit it in—“in the middle of the night?” she wondered.
Urman does not receive any benefits such as vacation or sick pay. Sheila Grisim, director of home and community supports at Fraser, said that some agencies do not even pay full-time PCAs benefits (at Fraser PCAs are eligible for benefits at 32 hours). Grisim said that Fraser has managed to absorb cuts in Medicare reimbursements without passing it along to employees, but she said that the 20 percent cut would be too much to absorb. “We already lose $100,000 a year on the PCA program,” she said. When the law first passed in 2011, Grisim called every relative PCA and explained the cut, which Fraser implemented. Staff were reimbursed for lost wages after the state legislature agreed to delay the cut to July 2013.
A group consisting of PCA agencies, PCAs, individuals receiving care, and a relative of a care recipient sued DHS Commissioner Lucinda Jesson, arguing that the law was unconstitutional. The state disagreed, arguing that relatives have a moral obligation to assist family members, and even with a wage cut, they will continue to care for their family. PCAs who are not related to the person they are assisting do not have the same motivation to continue care if wages are cut, the state reasoned. (See the opinion portion of the Minnesota Court of Appeals ruling for more detailed argument.)
The Minnesota Court of Appeals disagreed with the state’s reasoning on the wage cut, and at the end of 2012, called the law unconstitutional under the state constitution’s Equal Protection Clause (Article 1, Section 2). In the opinion, Judge Terri Stoneburner, wrote that relative PCAs and non-relative PCAs do the same work, and both parties had agreed that this was so. The distinction between relative and non-relatives is arbitrary, she said. According to the judge’s opinion contained in the ruling:
“The distinction advanced by respondent [the state] is based purely on assumptions rather than facts, including the apparently unchallenged assumption that a moral obligation to provide care for a relative necessarily equates to a moral obligation to personally provide such care at a lower rate of pay than a nonrelative PCA would receive for the same work.” [emphasis in original]
Jennifer Daulman is not related to the child she helps care for one night a week, but she agreed with the court’s ruling. “I think personally that it’s wrong to pay relative caregivers less because they’re caring for their family member 24/7,” she said.
Alison Stameaugh also works as a PCA, but is not related to her clients. Stameaugh said about non-relative and relative PCAs, “We’re hired to do the same thing… I think to discriminate just based upon whether you’re in someone’s family or not is not fair; it’s not equal.”
Timeline of the law and ensuing lawsuit
July 2011 – The state legislature approved an amendment that meant relative PCAs would be paid 20 percent less than non-relative PCAs, effective Oct. 1, 2011.
October 2011 – A group of PCA agencies, relative PCAs, care recipients, and a relative of a care recipient sued the Minnesota Department of Human Services Commissioner Lucinda Jesson and Governor Mark Dayton, who was later removed from the lawsuit. A Ramsey Court judge issued a temporary injunction on the law.
March 2012 – The Ramsey Court judge ruled that the law could take effect and did not violate the state constitution.
April 2012 – The Minnesota state legislature delayed the effective date of the wage cut until July 2013.
December 2012 – The Minnesota Court of Appeals reversed the Ramsey Court judgment and ruled that the law does violate the Equal Protection Clause in the state constitution (Article 1, Section 2).
January 2013 – DHS said that they will not appeal the ruling.
Reporting for this article supported in part by Bush Foundation.