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
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
Appellant: Jeffrey A. Simkovic, Billings Legal, PLLC,
Billings, Montana Daniel G. Gillispie, Attorney at Law,
Appellee: Peter J. Stokstad, Justin K. Cole, Garlington, Lohn
& Robinson, PLLP, Missoula, Montana
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:
the District Court err by denying Swanson's motions on
the ground that the claims were foreclosed under §
AND PROCEDURAL BACKGROUND
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.
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,
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
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.
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.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).
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
(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 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