A federal judge has issued a temporary restraining order stopping Washington state officials from implementing a new law that would require people who care for developmentally disabled family members to quit working through licensed agencies and become independent providers.
U.S. District Court Judge Benjamin Settle issued the order Wednesday afternoon as part of a lawsuit seeking to block implementation of Substitute House Bill 2361. The legislation, approved by lawmakers this spring, will hurt care givers, force some home care agencies out of business, and expose people with disabilities to increased risks to their health and safety.
Several home care agencies, care givers and beneficiaries filed the lawsuit Monday against Gov. Chris Gregoire and state Department of Social and Health Services Secretary Susan Dreyfus.
The ruling gave a temporary reprieve for care givers, who were faced with a choice to turn over care of their loved one to someone else, or quit working for a home care agency -- and give up access to additional support services that come as a result.
In many of these situations there is no choice - the only person capable of providing the kind of care required is a family member. “Personal care,” as it’s called by officials, means just that: Personal. Toileting. Bathing. Dressing.
DSHS was planning to implement the law beginning July 1.
Nearly 100 people packed the court room Tuesday in U.S. District Court in Tacoma to witness the hearing, said Jenny Eigner, owner of Kemper Services, Inc. Eigner is not a plaintiff in the case, but some of her employees are.
“It was incredible,” Eigner said.
The stakes are high for all involved.
For the home care providers, the law would mean taking a 35 to 45 percent pay cut, losing medical insurance for dependants, and joining the Service Employees International Union or paying union dues.
In court papers, attorneys from the Seattle law firm Bennett Bigelow & Leedom note one case where the loss of insurance would be devastating: A man who receives health care coverage as a dependent of his spouse – the home care provider – who was recently diagnosed with a blood disorder.
For the developmentally disabled population who count on their care givers, the law poses serious risks to their health and safety.
That’s because home care agencies provide a significant amount of services beyond the level provided by independent providers, including additional training and access to staff members who supervise the quality of care.
The court papers cite numerous examples of seriously disabled adults and children who rely on care from a family member employed through a home care agency.
“For some, the agencies play an essential role in providing backup care that otherwise would be difficult to obtain or unavailable in rural areas,” plaintiff attorneys write. Furthermore, the beneficiaries of the care do not have the capability to hire and supervise independent care providers as the law would require.
For the home care agencies, the law would lead to a loss of business, forcing some to consider shutting their doors.
Lawmakers hoped the law would save the cash-strapped state some money. Independent providers are reimbursed at a lower rate through Medicaid than providers who work through an agency.
The cost savings are questionable, though, in part because taxpayers would end up paying the health care premiums for the independent providers.
Regardless, attorneys for the plaintiffs say the law violates federal law, including Medicaid law and the Americans with Disabilities Act, because it discriminates against people based solely on their status as a family member of someone with a disability.
Because the judge agreed to grant a temporary restraining order, any harm has been postponed.
At least for now, care givers can continue to work through home care agencies. And the people who rely on that care will continue receiving it from relatives.
A hearing on a preliminary injunction is scheduled July 28.
