Hearing Decision Sets Rate for Family Caregivers

By Harry S. Margolis

The hearing officer in a well considered decision determined that $17.50 an hour was an appropriate rate for a woman with dementia to pay family members for her care.

Over two years, from April 2007 through March 2008, the woman paid her daughter, son-in-law and granddaughter a total of $204,888.50 pursuant to three separate personal care contracts under which she agreed to pay $20 an hour. The family kept detailed logs of the care they provided and were only paid after providing the care.

Subsequently, the woman moved to a nursing home and sought MassHealth coverage beginning September 1, 2010. MassHealth rejected her application, arguing that the entire payment was a disqualifying transfer.

On appeal, MassHealth appears to have modified its all or nothing stance and to instead have argued that the woman overpaid for the services provided, saying that she should have paid the MassHealth personal care attendant rate of $10.84 or $11.60 an hour (it increased during the period in question) and that anything above this amount was a disqualifying transfer. The appellant’s representatives argued that $20 an hour reflected what it would cost to hire a private agency to provide care.

The hearing officer finds largely in favor of the appellant because "the manner in which these contracts were executed, overseen and the care provided were comparable to that offered by the agencies with the added benefits that the care was provided by family members known to the appellant, adding a sense of trust and security that may not otherwise have existed." She goes on to explain in significant detail her reasoning as to why the care differed from PCA care. The higher rate also takes into account overhead, vacation and holiday pay that would be paid to a PCA.

The hearing officer, however, reduced the rate from $20 to $17.50 an hour based on the fact that the family did not have the same overhead costs as private agencies.

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