JACKSON v. BOSTON CENTER FOR INDEPENDENT LIVING (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff appeals from a judgment of the Superior Court, dismissing her amended complaint alleging violations of the Massachusetts Wage Act, G. L. c. 149, § 148; the Massachusetts overtime statute, G. L. c. 151, § 1A; and the Federal Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 201 et seq.⁴ We affirm.

The case is controlled in large part by our decision in Gallagher v. Cerebral Palsy of Mass., Inc., 92 Mass. App. Ct. 207 (2017), which held that a fiscal intermediary like the defendant, Tempus Unlimited, Inc. (Tempus), is not in an employer-employee relationship with a personal care attendant (PCA) like the plaintiff for purposes of G. L. cc. 149 and 151. Id. at 210-214 (more than “mere participation” in MassHealth regulatory framework required to be deemed presumptive employer). Instead, under the applicable regulations, a MassHealth “member” found eligible for PCA services by a personal care management agency like the defendant, Boston Center for Independent Living (BCIL), hires the PCA, sets the schedule, and functions as the PCA's employer. Id. at 211-212. In Gallagher, this court also rejected the PCA's joint employer argument on the ground that not only did the PCA not provide any services to the fiscal intermediary, the intermediary, unlike the member, had no right to control the PCA's work.⁵ Id. at 214-215. The same reasoning supports the conclusion that BCIL and Tempus, mere participants in the highly-regulated MassHealth program, and the Executive Office of Health and Human Services, the agency that operates MassHealth, are not employers or joint employers of the plaintiff under State law.⁶ For similar reasons, the plaintiff failed to state a cognizable claim under the FLSA. See Baystate Alternative Staffing, Inc. v. Herman, 163 F.3d 668, 675 (1st Cir. 1998).

We recognize that the plaintiff is working more hours than approved for payment, based on her belief that the member under her care requires additional services than approved for reimbursement in order to survive. The posture of the present case does not require, or even permit, us to consider what mechanisms might be available to address circumstances in which a member, competent to file an application for care reimbursement at the time care commences, deteriorates to a point where he is incapable of requesting approval for an increased level of care before the next scheduled periodic review. To the extent (if any) that the present regulatory scheme does not accommodate such a possibility, we encourage the defendants to explore how the apparent shortcoming might be addressed.

Judgment affirmed.

FOOTNOTES

4.   All other claims asserted in the amended complaint have been waived.

5.   We decline the plaintiff's request that we overturn Gallagher, both on principles of stare decisis and because -- for the reasons explained in the decision -- its conclusion is entirely consistent with the applicable regulatory scheme. The distinction the plaintiff seeks to draw between the facts of Gallagher and those in the present case (the presence of a “surrogate” in Gallagher contrasting with none in the present case) is immaterial to the legal and regulatory analysis in Gallagher.

6.   The plaintiff did not allege that any aspect of her relationship with BCIL and Tempus occurred outside the framework of the regulations. See Gallagher, 92 Mass. App. Ct. at 213-214. Our view of the case obviates any need for us to consider the plaintiff's request that we abrogate the doctrine of sovereign immunity.