After having been unemployed for a year, I was found eligible for MassHealth insurance benefits the next 2 years. But in 2004, a supervisor in the MassHealth Springfield office decided that because of my participation in the AFC program, I was "working". I explained that my situation was not anything like a "real" job in that I received only a token amount of 60 cents an hour for working 24 hours a day, 7 days a week, with not a single day off in (at that time) 3 and a half years. And that it would be more accurate to consider an AFC host family as a volunteer. But as the AFC Agreement contains the phrase "Independent Contractor", she felt that this signified an employment relationship despite my arguments.
MassHealth has an appeal process for those that believe a wrong decision has been made. I filed such an appeal with the Board of Hearings (BOH). The MassHealth supervisor wanted me, and other AFC host families that were in a similar situation, to not be eligible for MassHealth insurance benefits under the category of "long term unemployed". Unfortunately the BOH officer agreed with her and decided that participation in MassHealth's AFC program as a host family was employment.
I concluded that if MassHealth insisted that my participation in the MassHealth AFC program was employment, then they certainly had that right. But also, if I truly was employed, that it was about time I received fair wages. I asked WestMass ElderCare for payment of back wages, to begin paying me fairly, and agreed to comply with any of their customary employee requirements. They answered that I was an "Independent Contractor". Because Massachusetts has strict rules regarding the definition of an "Independent Contractor", and it's misuse to wrongly classify employees as a way to avoid payment of fair wages and taxes, I contacted the Massachusetts Attorney General's office. Their response included:
This letter is to inform you that we have carefully reviewed your complaint and have determined that the proper resolution of this matter may be through a private suit in civil court. Accordingly, we are authorizing you to pursue this matter through a civil lawsuit immediately.
Without making a judgement on the merits of your complaint, this correspondence represents this office's written assent to sue and grants you the authority to pursue this matter against your employers immediately, as permitted by Massachusetts General Laws chapters 149 and 151.
As I am not a lawyer, I sought advice and possible representation. There are many lawyers, but very few deal with employment law. At least not when it involves the State, and someone too poor to pay legal fees. Unfortunately Western Massachusetts Legal Services (WMLS) was unable to provide any help because WestMass ElderCare was one of their sponsors and helping me in a lawsuit against them would be a conflict of interest. Because I wrongly believed that the State Court would not appoint a lawyer to help me, but that Federal Court might, I filed a complaint in Federal Court. Unfortunately they too would not provide any assistance. So I proceeded as best as I could on my own as "Pro Se".
The inappropriate use of the term "Independent Contractor" in the AFC agreement was a key factor in MassHealth's denying me insurance and the resulting difficulties:
- I was not insured for a year and a half. Luckily I did not need to use it, but not having it caused stress just the same.
- If I had become unable to provide care, the care recipient would have been institutionalized.
- The care recipient's recovery progress was set back because their sense of security was undermined.
- The care recipient's heightened apprehension required more frequent and more extensive care making my work more time consuming and more difficult.
- My unaided pursuit of justice eliminated what little time I had for "personal time" and interfered with what time I had for tasks such as general upkeep of the property. This has resulted in unnecessary depreciation of property value and the deterioration will now require more effort and cost to restore.
Because of all the trouble that resulted from the wrongly worded agreement, I had asked that if WestMass ElderCare were not inclined to treat me as a bona fide employee that they at least reword the agreement to use "volunteer" or something else that reflected the true nature of the AFC host family relationship. During the Scheduling Conference I learned from WestMass ElderCare's attorney that WestMass ElderCare was not free to decide the language of the AFC agreement. Where then did the wrongly used term "Independent Contractor" originate? MassHealth? The State legislature?
Fortunately the Judge was able to put me in contact with a lawyer from WMLS that could help me to regain MassHealth Insurance coverage. The lawyer contacted someone in Boston and told me to reapply for MassHealth. The supervisor at the Springfield office apparently hadn't gotten the word yet, as she again denied my application. But after I asked the lawyer at WMLS to please help in getting the word to her, I was eventually again found eligible.
In any case, because WestMass ElderCare had, and has always, treated me in a way consistent with my being a volunteer, and MassHealth no longer considered me as "working", I concluded that it would not be fair for me to continue an action against them for something not under their control.
I asked the lawyer at WMLS to help me in obtaining an apology from either the supervisor that had initiated the problem, or at least from one of her supervisors. I also asked for some form of reassurance that other AFC host families that may have also been wrongly found ineligible for MassHealth insurance had been made aware of their renewed eligibility. To date I have not received these. I'm afraid that I may have to file a complaint against MassHealth if I hope to see justice prevail.
But that is another story.