Markham v. Wolf

• Decision Date: 22 September 2016
• Docket Number: No. 176 M.D. 2015,176 M.D. 2015
• Citation: 147 A.3d 1259
• Parties: Jessica Markham, Victoria Markham, Jesse Charles, Pennsylvania Homecare Association, United Cerebral Palsy of Pennsylvania, Petitioners v. Thomas W. Wolf, in his Official Capacity as Governor of the Commonwealth of Pennsylvania, Department of Human Services, Office of Long Term Living, Respondents
• Court: Pennsylvania Commonwealth Court

147 A.3d 1259

Jessica Markham, Victoria Markham, Jesse Charles, Pennsylvania Homecare Association, United Cerebral Palsy of Pennsylvania, Petitioners

v.Thomas W. Wolf, in his Official Capacity as Governor of the Commonwealth of Pennsylvania, Department of Human Services, Office of Long Term Living, Respondents

No. 176 M.D. 2015

Commonwealth Court of Pennsylvania.

Argued June 8, 2016

Filed September 22, 2016

James J. Kutz, Harrisburg, for petitioners.

Kenneth L. Joel, Chief Deputy Attorney General, Harrisburg, for respondents.

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE MICHAEL H. WOJCIK, Judge

OPINION BY JUDGE SIMPSON

In this case in our original jurisdiction, we are asked to determine the validity of an executive order which purports to create new arrangements for direct care workers who provide personal services to certain aged and disabled participants in their homes. We are mindful of the respect and privacy afforded to a person in his or her home, dating back at least to Elizabethan England, and expressed in the words of Sir Edward Coke: "For a man's home is his castle, et domus cuique tutissimum refugium ."¹

More particularly, before this Court are the parties' cross-applications for summary relief. Jessica Markham, Victoria Markham, Jesse Charles, Pennsylvania Homecare Association (PHA), and United Cerebral Palsy of Pennsylvania (UCP) (collectively, Petitioners) filed a petition for declaratory and injunctive relief seeking to invalidate an executive order issued by Governor Thomas W. Wolf (Governor Wolf) pertaining to direct care workers (DCW) whose services to eligible aged or disabled individuals are paid by the Department of Human Services, Office of Long Term Living (Department). The Department and Governor Wolf (collectively, Respondents) also filed preliminary objections, which are before us for disposition.

Petitioners assert the executive order is an unauthorized exercise of power, is unconstitutional and is in conflict with existing labor and health laws. Respondents counter that Petitioners lack standing and their challenge lacks merit. Upon review, we grant Petitioners' application for summary relief as to certain provisions of the Executive Order (Sections 3, 4, and related parts of Sections 1 and 5). Also, we deny Respondents' application for summary relief (as to Sections 3, 4, and related parts of Sections 1 and 5), but allow other portions to remain. Further, we overrule their preliminary objections to the extent they are not mooted by our decision on the merits.

I. Background

A. Home Care Programs

On February 27, 2015, Governor Wolf issued Executive Order No. 2015-05 (Executive Order), entitled "Participant-Directed Home Care Services." See 45 Pa. B. 1937 (April 18, 2015). The Executive Order focused on individuals who receive, and the DCWs who provide, in-home personal (non-medical) care pursuant to the Attendant Care Services Act, 62 P.S. §§ 3051-3058(Act 150),² and federal Medicaid waiver programs.

The Department administers Act 150³ and the Medicaid waiver programs, including the: Aging Waiver; Attendant Care Waiver; CommCare Waiver; Independence Waiver; and, OBRA Waiver Program (collectively, Home Care Programs). The Department oversees home care services and administers the funding for Home Care Programs. The Department also files the Medicaid waivers with the U.S. Department of Health and Human Services, representing that the elderly or disabled participant in the program employs DCWs eligible for payment.

It is clear that we are addressing home-based services rendered to some of our neediest citizens where they live. Individuals receiving home care services are "participants." 55 Pa. Code § 52.3. Under the Home Care Programs, DCWs provide personal care and domestic services to enable participants to live at home rather than in an institution. At times, a DCW is a participant's relative, residing at the same address.

Home care services are directed either by participants, under the Participant Model, or by agencies under the Agency Model. Under the Participant Model, DCWs are recruited, hired, and managed by a participant who employs the DCW. By contrast, under the Agency Model, a home care agency recruits, hires and manages the DCW. As employers, participants have federal employer identification numbers, are subject to workers' compensation and unemployment requirements, and pay relevant employer taxes. Under Act 150, participants have the "right to make decisions about, direct the provision of and control ... [home] care services." Section 2(3) of Act 150, 62 P.S. § 3052(3). Thus, participants' control over their care is unfettered other than compliance with home care service regulations.

In sum, participants have three roles: they receive personal care and domestic services; they receive the services where they reside; and, they employ the persons who render the services in their homes.

B. Executive Order

The Executive Order governs the relationship between DCWs and the Department. ⁴

As such, it pertains only to the Participant Model. The Executive Order establishes a new policy-making body regarding the provision of home care. The Executive Order also allows DCWs to elect an employee organization with which the Department must meet and discuss certain issues. In so doing, the Executive Order empowers non-Commonwealth employees to negotiate with the Commonwealth through a newly created position of a DCW representative.

To aid the election process, on a monthly basis, the Department is required to compile a list of the names and addresses of all DCW workers (DCW List), who, within the three previous months, were paid through a Home Care Program that provides services under the Participant Model.

Section 2 of the Executive Order establishes an advisory group to advise the Governor and the Department "on ways to improve the quality of care delivered" through Home Care Programs (Advisory Group). Executive Order (E.O.) at 3. The Advisory Group is comprised of the Secretary of the Department (Secretary) and five members appointed by the Governor, including participants and advocates for seniors and persons with disabilities. The Advisory Group shall meet at least quarterly and discuss: (1) reducing the waiting list to receive services through Home Care Programs; (2) evaluating the Department to ensure program standards are met; (3) rebalancing Commonwealth resources from institutional care to home and community based services; (4) ensuring the Commonwealth adheres to the principles of participant direction, independent living and consumer choice; and, (5) "[o]ther issues that the Governor may deem appropriate." Id. at 4.

Section 3 of the Executive Order creates a process for organizing the DCWs under an employee organization authorized to represent DCWs in their relations with the Commonwealth. Any employee organization may petition the Department to represent DCWs once it demonstrates that 50 DCWs support its representation. The employee organization is then entitled to obtain the DCW List, which it may use to solicit membership in the organization.

The Executive Order requires the Secretary to designate the American Arbitration Association (AAA) to conduct an election for a representative of the DCWs, and to certify the election outcome pursuant to the process in the Executive Order. The Executive Order provides AAA shall conduct an election when an employee organization demonstrates support from at least 10% of the DCWs on the DCW List. All DCWs are eligible to vote in the election. Provided the organization meets the 10% threshold, a majority of votes cast determines which organization serves as the DCW representative (Designated Representative). Only one Designated Representative may be recognized at any time.

The Executive Order mandates the Secretary, the Deputy Secretary and the Designated Representative meet and confer, at least monthly, regarding concerns of DCWs and ways to improve the quality of care. Specifically, the Executive Order requires the Secretary and Deputy Secretary to discuss DCWs' terms and conditions of employment with the Designated Representative.

In Section 3(c) entitled, "Memorandum of Mutual Understanding" (MOU), the Executive Order further provides the "[m]utual understandings reached during the meet and confer process shall be reduced to writing[,] [and] [w]here appropriate ... understandings reached through the meet and confer process will be implemented as the policy of the Department ...." E.O. at 5 (emphasis added). Then, the Designated Representative may make recommendations for legislation or rulemaking as needed. Although the Executive Order does not compel the Department and the Designated Representative to reach a MOU, in the event they do not, the Governor shall meet with the Department and Designated Representative "and attempt to resolve the issues of disagreement." Id. While the Executive Order allows the DCW Representative to meet with the Governor, it does not afford participants an opportunity to meet with the Governor.

Section 4 of the Executive Order addresses the DCW List, to be used by a prospective employee organization in contacting DCWs.

Section 5 of the Executive Order is entitled "No Change to Existing Rights and Relationships." Some of the provisions, however, refer to new relationships that may arise during the operation of the Section 3(a) election process, the 3(b) meet and confer process, and the 3(c) memorandum of mutual understanding process. See Sections 5(c) through 5(g). Section 6 of the Executive Order is entitled "Cooperation with Commonwealth Agencies." Section 7 of the Executive Order is entitled "Effect and Duration."

During the litigation, Governor Wolf and the Department took steps to implement the Executive Order. To date, AAA certified United Home Care Workers of Pennsylvania, LLC (UHCWP) as the...