Doe v. Kidd, et al

Filing 200

ORDER AND OPINION denying 181 Motion for Attorney Fees; denying 182 Motion for Attorney Fees; denying as moot 185 Motion to Stay; denying as moot 186 Motion for Extension of Time to File Response/Reply ; granting 189 Motion for Summary Judgment. Signed by Honorable Margaret B Seymour on 2/5/2013.(asni, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Sue Doe,

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Plaintiff,
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v.
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Linda Kidd, Stan Butkus, Kathi Lacy, the )
South Carolina Department of Disabilities )
and Special Needs, Robert Kerr, and the
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South Carolina Department of Health and )
Human Services,
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)
Defendants.
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____________________________________)

Civil Action No.: 3:03-1918-MBS

ORDER AND OPINION

Plaintiff Sue Doe has developmental disabilities, including epilepsy, mild mental retardation,
and cerebral palsy. In May 2003, Plaintiff sought to receive residential habilitation services in either
a Community Training Home I (CTH I), a private foster home where a services recipient resides
with a family, one member of whom is a trained caregiver; or a Community Training Home II (CTH
II), a group home with live-in caregivers for four or fewer recipients. In June 2003, Defendant South
Carolina Department of Disabilities and Special Needs (DDSN) authorized services in either a
Supervised Living Program II (SLP II), an apartment where recipients of DDSN services reside
together, or CTH I.1 Plaintiff was offered CTH I services at a particular facility, which she rejected.
Plaintiff then was placed in a CTH II facility. Plaintiff filed a complaint on June 9, 2003, asserting,

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SLP II is the least restrictive placement; CTH II is the most restrictive. Defendants are obligated
to provide needed services in the least restrictive environment available. See S.C. Code Ann § 4420-20.

among other things, that Defendants had failed to provide Medicaid services to which she is entitled
with reasonable promptness as required by 42 U.S.C. § 1396a(a)(8).
The matter came before the court on motion for summary judgment filed by Defendants on
May 14, 2009, ECF No. 144, as well as Plaintiff’s motion for summary judgment, which motion was
filed May 14, 2009, ECF. No. 145. The issue was whether Defendants violated § 1396a of the
Medicaid Act by providing Plaintiff with temporary respite services instead of providing her, with
reasonable promptness, the residential habilitation services approved in her 2003 plan of care. The
court found that, pursuant to Bruggeman ex rel. Bruggeman v. Blagojevich, 324 F.3d 906 (7th Cir.
2003), Plaintiff’s rights under the Medicaid Act are limited to receiving funding with reasonable
promptness. Accordingly, the court concluded that § 1396a(a)(8) does not require Defendants to
provide specific services that an individual requests. Rather, Defendants’ only obligation under §
1396a(a)(8) is to pay for medical services promptly when presented with the bill. The court granted
Defendants’ motion for summary judgment and denied Plaintiff’s motion for summary judgment by
order filed January 29, 2010. ECF No. 167.
Plaintiff appealed the court’s order on February 12, 2010. On March 24, 2011, the Court of
Appeals for the Fourth Circuit affirmed in part and reversed in part, and remanded with instructions.
See Doe v. Kidd, 419 F. App’x 411 (4th Cir. 2011). As to the § 1396a cause of action, the Fourth
Circuit found that Defendants’ failure to offer Plaintiff alternative SLP II or CTH I placements is
tantamount to failing to provide Medicaid services with reasonable promptness. The Fourth Circuit
concluded that, as a matter of law, “Defendants have violated the Medicaid Act through their
ongoing refusal to finance residential habilitation services at an acceptable CTH I placement of
[Plaintiff’s] choice.” Id. at 418.
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The Fourth Circuit noted that Plaintiff had abandoned her damages claim on appeal.
However, the Fourth Circuit observed that it is within the equitable powers of this court to order
Defendants to place Plaintiff in an appropriate SLP II or CTH I program of her choice. Id. at 418-19.
Ultimately, the Fourth Circuit reversed the court’s order granting summary judgment for Defendants.
The Fourth Circuit granted Plaintiff’s motion for summary judgment, and remanded the case to this
court to devise appropriate remedial relief and to determine reasonable attorney’s fees pursuant to
42 U.S.C. § 1988. The Fourth Circuit issued its mandate on May 9, 2011.
On February 3, 2012, the court received a letter from Plaintiff’s counsel indicating that the
parties had been discussing resolution of the outstanding issues and that, if the parties could not
resolve the issues, they would jointly advise the court. On August 13, 2012, Plaintiff filed a motion
for interim attorney’s fees as well as a motion for partial interim award of costs. ECF Nos. 181, 182.
On September 14, 2012, Defendants filed a motion to stay as well as a motion for extension of time
to file a response to Plaintiffs’ motions. ECF Nos. 185, 186. On September 28, 2012, Plaintiff filed
a motion for summary judgment in which she stated she was entitled to summary judgment based
upon the Fourth Circuit’s opinion. Plaintiff also argued that she was entitled to interim fees as the
prevailing party and that she would shortly file a motion for remedial merits relief. ECF No. 189.
No such motion has been forthcoming.
The Fourth Circuit granted Plaintiff’s motion for summary judgment in its March 24, 2011
order. To the extent necessary, the court grants Plaintiff’s motion seeking the entry of summary
judgment in accordance with the Fourth Circuit’s March 23, 2011 opinion (ECF No. 189) and directs
the Clerk of Court to grant Plaintiff’s motion for summary judgment as to the Third Cause of Action
(ECF No. 145).
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Plaintiff is directed to file a motion for remedial merits relief within fifteen (15) days of the
date of entry of this order, or otherwise inform the court that the matter has been resolved.
Defendants may respond to any such motion, and Plaintiff may file a reply, within the applicable
time periods set forth in the Federal Rules of Civil Procedure and Local Civil Rules, D.S.C. The
court thereafter will order such equitable relief as may be appropriate, if any. The court will take up
the matter of attorney’s fees after resolution of any claim by Plaintiff for equitable relief.
Accordingly, Plaintiff’s motions for interim attorney’s fees and costs (ECF Nos. 181, 182) are
denied without prejudice. Defendants’ motion to stay (ECF No. 185) and motion to extend time
(ECF No. 186) are denied as moot.
IT IS SO ORDERED.

/s/ Margaret B. Seymour
Senior United States District Judge
Columbia, South Carolina
February 5, 2013.

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