Markham v. Wolf

190 A.3d 1175

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

v.Thomas W. WOLF, in His Official Capacity as Governor of the Commonwealth of Pennsylvania, Department of Human Services, Office of Long Term Living, Appellants

David W. Smith and Donald Lambrecht, Appellees

v.Governor Thomas W. Wolf, in His Official Capacity as Governor of the Commonwealth of Pennsylvania and Commonwealth of Pennsylvania, Department of Human Services, Appellants

No. 109 MAP 2016

No. 110 MAP 2016

Supreme Court of Pennsylvania.

Argued: November 28, 2017

Decided: August 21, 2018

Irwin William Aronson, Esq., Stuart West Davidson, Esq., Bruce Michael Ludwig, Esq., Deborah R. Willig, Esq., Willig, Williams & Davidson, for Pennsylvania AFL-CIO, et al., Amicus Curiae.

Kimberly R. Crockett, Esq., for Center of the American Experiment, Amicus Curiae. Joel L. Frank, Esq., Lamb McErlane PC, for Senate President Pro Tempore Joseph B. Scarnati, III, and Speaker of the House, Michael C. Turzai, Amicus Curiae.

Amy Elizabeth Galer, Esq., Brodie & Rubinsky, P.C., for United Homecare Workers of Pennsylvania Liberty Resources, Inc. et al, Amicus Curiae.

Claude Joseph Hafner II, Esq., Pennsylvania Senate, Jason Michael Staloski, Esq., Nora Winkelman, Esq., Pennsylvania House of Representatives, for Sen. Jay Costa, Democratic Leader, Rep. Fank Dermody, Democratic Leader et al, Amicus Curiae.

Aaron Diego Martin, Esq., Mette, Evans & Woodside, for National Federation of Independent Business Small Business Legal Center, Amicus Curiae.

Mark Stadler, Esq., Burns White, LLC, for TRIPIL Services, Amicus Curiae. W. James Young, Esq., National Right to Work Legal Defense Foundation, Inc., for National Right to Work Legal Defense Foundation, Inc., Amicus Curiae.

Kenneth Lawson Joel, Esq., Pennsylvania Office of Attorney General, Denise Joy Smyler, Esq., for Thomas W. Wolf, Department of Human Services, Office of Longterm Living, Appellant.

Kenneth Lawson Joel, Esq., Maryanne Mueller Lewis, Esq., Pennsylvania Office of Attorney General, for Thomas W. Wolf, and Commonwealth of Pennsylvania, Department of Human Services, Appellant.

Jason Gantcliffe Benion, Esq., John Walter Dornberger, Esq, Cynthia A. Haines, Esq., James John Kutz, Esq., Paula Gayle Sanders, Esq., Post & Schell, P.C., for Jessica Markham, Victoria Markham, Jesse Charles, Pennsylvania Homecare Association, et al., Appellee.

Nathan John McGrath, Esq., David Randel Osborne, Esq., The Fairness Center, for David W. Smith and Donald Lambrecht, Appellee.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

JUSTICE TODD

The Pennsylvania Constitution, since its inception in 1776, has created a framework of government vesting legislative, judicial, and executive powers in three separate branches. This tripartite structure, with its system of checks and balances among these branches, is designed to prevent a concentration of power in any one branch and to prevent one branch from exercising the core functions of another — the embodiment of the separation of powers doctrine. See Commonwealth v. Mockaitis , 575 Pa. 5, 834 A.2d 488, 499 (2003). Foundationally, the legislature creates the laws. Pa. Const. art. II, § 1. The judiciary interprets the laws. Pa. Const. art. V, § 1. Finally, Article IV, Section 2 of our charter provides the Governor "supreme executive power" to implement the laws of the Commonwealth. Pa. Const. art. IV, § 2. It is the breadth of this gubernatorial power that is at issue in this direct appeal.

Specifically, we consider whether Governor Thomas Wolf's Executive Order 2015-05 ("Executive Order" or "Order"), concerning home health care services, constitutes an impermissible exercise of gubernatorial authority. For the reasons that follow, we conclude, that given the nature of the Executive Order, Governor Wolf did not exceed his constitutional powers. Thus, we vacate the Commonwealth Court's order, and remand for additional proceedings consistent with our decision today.

The facts underlying this appeal are not in dispute. On February 27, 2015, Governor Wolf issued the Executive Order, entitled "Participant-Directed Home Care Services." The Executive Order set forth in full is attached hereto as Appendix A. The Order focused on the in-home personal (non-medical) services provided by direct care workers ("DCW") to elderly and disabled residents who receive benefits in the form of DCW services in their home rather than institutional settings ("participants"), pursuant to the Attendant Care Services Act ("Act 150"). 62 P.S. §§ 3051 - 3058. These services are rendered to some of the most challenged citizens of our Commonwealth. Often, the DCW is a participant's relative living with the participant. The Department of Human Services (the "Department") administers home care services through Act 150 and the Medicaid waiver programs — including the: Aging Waiver; Attendant Care Waiver; CommCare Waiver; Independence Waiver; and, OBRA Waiver Program (collectively, "Home Care Services Programs") — which are authorized under Title XIX of the Social Security Act, 42 U.S.C. §§ 1396-1 - 1396w-5. The Department is vested with statutory responsibility to establish policies, rules, and regulations implementing Home Care Services Programs, see 62 P.S. §§ 403.1, 3057, and it oversees and administers funding for such programs.

Home care services are typically directed by the participants who receive personal care and domestic services where they reside, and they recruit, hire, and manage the DCWs who render the services in their home (an arrangement known as the "Participant Model"). However, numerous adjunct functions are performed by the Department through vendors on behalf of the participant. The Participant Model is the only type of provision of home services at issue in this appeal.¹

In brief, the Executive Order addresses the relationship between participants, the DCWs, and the Department, establishing a new advisory group with respect to participants, and allowing DCWs to elect a representative organization for the purpose of meeting and conferring with the Department to discuss certain issues of mutual concern. It is the representative selection process and the structure of discussions between the representative and the Department which are the gravamen of the separation of powers challenge to the Executive Order.

Before moving on to that challenge, we must first discuss the Executive Order in some detail. Section 1 of the Executive Order sets forth relevant definitions. Section 2 establishes a group to advise the Governor and the Department "on ways to improve the quality of care delivered" through Home Care Services Programs ("Advisory Group"). 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 meets at least quarterly and discusses: (1) reducing the waiting list to receive services through Home Care Services 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 through the Participant Model; and (5) "[o]ther issues that the Governor may deem appropriate." Executive Order, § 2 (b)(5).

Section 3 of the Executive Order creates a process for facilitating the selection of a representative of DCWs for discussions with the Commonwealth. Any organization may petition the Department to represent DCWs once it demonstrates that 50 DCWs support its representation. To aid this process, and as set forth in Section 4 below, 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 Services Program that provides services under the Participant Model. Upon a showing of support by 50 DCWs for an organization seeking to represent DCWs, the Secretary shall provide the organization the most recent DCW List. The Executive Order directs that the Secretary designate the American Arbitration Association ("AAA") to conduct an election for a representative of the DCWs, and provides that the AAA shall conduct an election once an organization demonstrates support from at least 10% of the DCWs on the DCW List. All DCWs are eligible to vote in the election, and a majority of votes cast determines which organization serves as the DCW representative. Only one DCW representative may be recognized at any time. Pursuant to Section 3(b), the Secretary, the Deputy Secretary, and the DCW representative meet and confer, at least monthly, regarding concerns of DCWs and ways to improve the quality of care. Specifically, they are to discuss all relevant issues, including matters relating to the quality of services; recruitment and retention of qualified DCWs; a registry for referral of workers; compensation standards; payment procedures; orientation program development; training; and voluntary payroll deductions.

In Section 3(c), entitled "Memorandum of Mutual Understanding" ("MOU"), the Executive Order further provides that 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 ...." Executive Order, § 3(c)(1). Nothing compels the Department and the DCW representative to reach a mutual understanding; however, in the event they do not, the Governor will convene a meeting of the parties to understand their respective positions, and "attempt to resolve the issues of disagreement." Id. § 3(c)(3).

Section 4 of the Executive Order concerns...