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State Supreme Court Ruling Upholds Invalidation of DSHS Rule

August 27, 2007

OLYMPIA, Wash., Aug. 27 /PRNewswire-USNewswire/ — The Washington State Supreme Court announced on Tuesday, August 21, 2007 that it will not reconsider its earlier ruling invalidating the Department of Social and Health Services’ (DSHS) Shared Living Rule. This rule unlawfully eliminated essential shopping, laundry, housekeeping, and meal preparation benefits that participants in state programs could receive in their own homes from caregivers living with them.

“This is a win for as many as 13,000 people in Washington who received badly needed help with personal care and household tasks from caregivers living with them,” said Greg McBroom, the attorney representing plaintiff David Jenkins. “DSHS won’t be allowed to use a discriminatory rule to limit the amount of necessary care that people like David Jenkins require for their daily living.”

The Shared Living Rule was used in conjunction with several state run programs such as the Community Options Program Entry System (COPES) program, Medicaid Personal Care (“MPC”) program, the Chore Services program, and the Medically Needy In-Home Waiver (“MNIW”) program, which were designed to allow care recipients to remain in their own homes instead of having to go to more expensive nursing homes or other higher cost assisted living facilities. The Shared Living Rule allowed DSHS to automatically and inflexibly cut by 15 percent the number of monthly care hours for which the programs would pay.

The DSHS rule, implemented in early 2004, would have required David Jenkins and thousands of others to make a difficult choice — find a live-in care provider to perform the services for free or find other ways to obtain the required services (i.e. move to a nursing home or assisted living facility). Program participants whose caregiver did not live with them still received full benefits under the DSHS rule.

“What happened to David Jenkins and thousands of others is the kind of outcome that the COPES program was supposed to prevent,” McBroom said. “Instead, the DSHS rule forced both live-in caregivers and those needing assistance into an awful dilemma. And it unfairly applied only to those program participants with live-in caregivers.”

Jenkins, who has substantial physical and mental health issues, had his benefits reduced for 16 months while his case was reviewed and rejected by DSHS, and before he finally won in superior court and the rule was invalidated. The case eventually wound its way through the justice system to the state Supreme Court, which rejected an appeal by DSHS of a lower court’s invalidation of the rule. Now the Supreme Court has declined DSHS’ request to reconsider the Court’s earlier ruling.

As a result of the Jenkins case, DSHS has eliminated the Shared Living Rule effective June 29, 2007. But, DSHS is strongly resisting payments to reimburse program participants and live-in caregivers for eliminated care or lost pay. A class action lawsuit, therefore, has been filed against DSHS to enable program recipients and live-in care providers that were wrongfully impacted by the unlawful Shared Living Rule to be compensated for their losses.

The class action lawsuit is now pending in U.S. District Court for the Western District of Washington to determine whether the action should proceed as a class action and, if so, whether and how to compensate the care providers and recipients for the losses incurred.

Live-in care providers or recipients with live-in care providers in the COPES, Medicaid Personal Care program, Chore Services, and the Medically Needy In-Home Waiver programs should contact Greg McBroom, of Livengood Fitzgerald & Alskog, at (425) 822-9281 if they are interested in the class action lawsuit or if they would like additional information about their eligibility to participate.

Livengood Fitzgerald & Alskog, P.L.L.C.

CONTACT: Greg McBroom of Livengood Fitzgerald & Alskog, P.L.L.C.,+1-425-822-9281, ext. 315




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