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Swanson v. Consumer Direct

Supreme Court of Montana

March 14, 2017

LEE SWANSON, Individually and as the Personal Representative of the Estate of Maria Atkins-Swanson, Plaintiff and Appellant,
CONSUMER DIRECT, Defendant and Appellee.

          Submitted on Briefs: January 25, 2017

         APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV 14-1797 Honorable Russell C. Fagg, Presiding Judge

          For Appellant: Jeffrey A. Simkovic, Billings Legal, PLLC, Billings, Montana Daniel G. Gillispie, Attorney at Law, Billings, Montana

          For Appellee: Peter J. Stokstad, Justin K. Cole, Garlington, Lohn & Robinson, PLLP, Missoula, Montana



         ¶1 Lee Swanson (Swanson) appeals from the orders of the Thirteenth Judicial District Court, Yellowstone County, granting summary judgment to Defendant Consumer Direct and denying his M. R. Civ. P. 59(e) motion to alter or amend the judgment. We affirm and address the following issue:

         Did the District Court err by denying Swanson's motions on the ground that the claims were foreclosed under § 53-6-145, MCA?


         ¶2 Swanson is the Personal Representative of the Estate of Maria Atkins-Swanson (Atkins-Swanson), who tragically died in 2013. Atkins-Swanson was a participant in a government-sponsored program that forms the legal context for the claims brought by Swanson against Consumer Direct.

         Program Overview

         ¶3 The Social Security Act authorizes States to create, design, and administer home and community-based Personal Assistance Services Programs (PASPs), aimed at assisting the elderly and people with disabilities, collectively referred to as "Consumers, " with residential living. See, generally, 42 U.S.C. §§ 1396 et seq. (2012). PASPs help Medicaid-eligible Consumers maintain their independence, preserve their connection to the community, and avoid institutionalization by receiving support in their homes. Section 53-6-145(2)(d), MCA. Under a PASP, Consumers can obtain personal assistant services, or PAS, including assistance with activities of daily living, [1] household tasks, and escort services. Admin. R. M. 37.40.1101(2) (1995); § 53-6-145(2)(d), MCA. The Social Security Act grants States broad discretion in designing and implementing PASPs. The Montana Legislature has determined that Montana should participate in the program and has directed the Department of Public Health and Human Services (DPHHS) to establish PASPs for eligible Montanans. Section 53-6-145(1), MCA.

         ¶4 Pursuant to this directive, DPHHS has developed two different PASPs. The first program is designated as the Agency-Based PASP, which provides for the delivery of services by qualified personal care provider agencies. The provider agency works with the Consumer to establish the schedule for service provision and provides the trained staff necessary for the delivery of care. Under this program, Consumers have no authority and must rely on the provider agency to coordinate and provide the appropriate services.

         ¶5 The second program developed by DPHHS is designated the Self-Directed PASP. This is the program in which Atkins-Swanson was participating at the time of her death.[2]Under the Self-Directed PASP, the Consumer "has the primary responsibility . . . [for] scheduling, training, and supervis[ing] . . . the personal assistant." Admin. R. M. 37.40.1305(2)(a) (1995). Further, "[t]he consumer has the right to require that a particular assistant discontinue providing services to the consumer." Admin. R. M. 37.40.1305(2)(a) (1995). The Self-Directed PASP enables qualified Consumers to exert autonomy over their care needs and is "intended to provide control of service delivery to the consumer and to allow the consumer to direct health related tasks." Admin. R. M. 37.40.1301(1) (1995).

         ¶6 To qualify for the Self-Directed PASP under the regulations governing the program in 2013, a Consumer was required to:

(a) have a medical condition which results in the need for personal assistance services;
(b) be capable of assuming the management responsibilities of assistants or have an immediately involved representative willing to assume this responsibility;
(c) have authorization from a physician or health care professional to participate in the program; and
(d) be capable of making choices about activities of daily living, understand the impact of these choices and assume the responsibility of the choices.

Admin. R. M. 37.40.1305(1) (1995) (emphasis added).

         Consumer Direct

         ¶7 Consumer Direct is licensed as an agency service provider by DPHHS. Under the Self-Directed PASP, Consumer Direct provides administrative support to Consumers receiving personal services for a fee, helping Consumers apply their Medicaid benefits to compensate their personal assistants. Consumer Direct's "Consumer Training Manual" informed Cosumers that Consumer Direct would "process payroll, file taxes, bill for services, process criminal background checks and provide you with the training materials for your caregiver(s)."

         Maria ...

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