Doe v. Kidd, et al

Filing 235

AMENDED ORDER and OPINION re 203 MOTION for Remedial Relief filed by Sue Doe Signed by Honorable Margaret B Seymour on 8/21/2013; Nunc pro tunc date 8/12/2013. (mdea )

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

)
) C/A No. 3:03-1918-MBS
Plaintiff,
)
)
vs.
)
)
Linda Kidd, Stan Butkus, Kathi Lacy,
)
AMENDED
the South Carolina Department of
)
ORDER AND OPINION
Disabilities and Special Needs,
)
Robert Kerr, and the South Carolina
)
Department of Health and Human
)
Services,
)
)
Defendants.
)
____________________________________)
This action is before the court on remand from the Court of Appeals for the Fourth Circuit.
In its opinion, the Fourth Circuit directed the court to devise appropriate remedial relief, and to
determine reasonable attorneys’ fees pursuant to 42 U.S.C. § 1988, as more fully set out
hereinbelow. The parties subsequently informed the court that they were attempting to resolve this
case. When no settlement appeared to be forthcoming, the court issued an order on February 2, 2013
directing Plaintiff Sue Doe to file a motion for remedial relief, or else inform the court that the issues
had been resolved.
Plaintiff filed a motion for remedial relief on February 20, 2013. Defendants filed a response
in opposition to Plaintiff’s motion on March 18, 2013, to which Plaintiff filed a reply on April 8,
2013. On June 4, 2013, the court held a hearing on Plaintiff’s motion. During the hearing, the court
accepted a “supplemental reply” from Plaintiff. On June 5, 2013, Defendants filed, with permission,
a surreply to Plaintiff’s supplemental reply. On June 14, 2013, Plaintiff filed an extensive response

to Defendants’ surreply brief, to which Defendants responded and objected on July 3, 2013.
Although the court concurs with Defendants’ contention that Plaintiff has exceeded the scope of
remand in her arguments and submission of exhibits, the court has reviewed and considered all
relevant information in making its final determination.
I. FACTS AND PROCEDURAL HISTORY
Plaintiff has developmental disabilities, including epilepsy, mild mental retardation, and
cerebral palsy. She contends she is entitled to benefits under the Medicaid Act, 42 U.S.C. §§ 1396a
et seq., because of her mental retardation. Defendant South Carolina Department of Health and
Human Services (DHHS) is the state agency responsible for administering and supervising Medicaid
programs in South Carolina. Defendant Department of Disabilities and Special Needs (“DDSN”)
is authorized by the South Carolina Mental Retardation, Related Disabilities, Head Injuries, and
Spinal Cord Injuries Act to provide services to Medicaid-eligible persons.
The Medicaid program at issue involves an option plan administered by the state through
which the federal government provides partial funding for medical assistance to needy individuals.
Certain services are provided under a “waiver” program created by 42 U.S.C. § 1396n(c). Under this
program, the Department of Health and Human Services (“HHS”) waives a number of federal
mandates for disabled adults, so that the state may “experiment” with methods of care. When a
person makes an application for DDSN services, DHHS makes a determination as to whether the
person is entitled to Medicaid funding. Thereafter, DDSN determines whether the person is eligible
for DDSN services, and, if so, what “level of care” that person requires: i.e., whether the person can
be cared for in the home or needs institutional care. With respect to mental retardation, DDSN, at
the time of the underlying events, required three criteria to be met: (1) significantly subaverage
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intellectual functioning; an IQ [Intelligence Quotient] of approximately 70 or below on an
individually administered intelligence test; (2) concurrent deficits in present overall adaptive
functioning (i.e., the person’s effectiveness in meeting the standards expected for his age by his or
her cultural group), with deficits in at least two of the following adaptive skills areas:
communication, self-care, home living, social/interpersonal skills, use of community resources, selfdirection, functional academic skills, work, leisure, health, and safety; and (3) the onset of mental
retardation is before age eighteen. ECF No. 208-15, 12-13.
If an individual meets the applicable criteria, the next step is to determine the appropriate
level of care. Level of care evaluations take place at least every twelve months. The available levels
of care at issue in this case, from least to most restrictive, are:
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SLP II (Supervised Living Program II) - Typically an apartment situation where

developmentally disabled individuals live together.
• CTH I (Community Training Home I) - Typically a private residence in which a recipient
of DDSN services resides with a family, one of whom is a trained caregiver available at all times.
• CTH II (Community Training Home II) - Typically a group home with caregivers present
in shifts around the clock.
Plaintiff applied for DDSN services in July 2002. At that time, she was living at home and
her mother was her primary caregiver. In December 2002, DDSN, without making a determination
as to Plaintiff’s eligibility, placed Plaintiff on a non-critical waiting list for the Mentally
Retardation/Related Disabilities (MR/RD) program. DDSN gave Plaintiff provisional admission
into the MR/RD program because Plaintiff appeared to be experiencing an acute exacerbation of
seizures.
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Plaintiff appealed DDSN’s decision to a hearing officer and added a claim that DDSN failed
to serve her within a reasonable amount of time as required by federal regulations. On or about
February 18, 2003, while the appeal was pending before the hearing officer, DDSN moved Plaintiff
to the top of the critical waiting list. On or about March 11, 2003, Plaintiff was awarded a MR/RD
waiver slot and enrolled in the MR/RD waiver program. On or about March 17, 2003, DDSN
developed a plan of care that involved in-home services. ECF No. 226-27. In March 2003, DDSN
moved to dismiss the appeal. Plaintiff conceded that she had been moved to the top of the critical
waiting list and that DDSN had found her eligible for services. Consequently, the hearing officer
dismissed the appeal. ECF No. 226-28.
By letter dated March 28, 2003, Plaintiff was notified that her eligibility was to terminate.
Plaintiff requested another hearing before a hearing officer in May 2003 on the grounds that she had
not yet received the services promised by DDSN in her plan of care. Plaintiff also demanded
immediate CTH I or CTH II residential treatment because the mental health of Plaintiff’s mother had
declined and she no longer was able to care for Plaintiff in the home.
Plaintiff brought the within action in federal court on June 9, 2003. Among other things,
Plaintiff alleged in her third cause of action that Defendants violated the Medicaid Act by failing to
provide her, with “reasonable promptness,” the residential and other MR/RD Medicaid waiver
services approved by DDSN in April 2003. See 42 U.S.C. § 1396a(a)(8). Late in June 2003, DDSN
authorized CTH I or SLP II services for Plaintiff at a residential center. DDSN chose the Babcock
Center as a provider; however, Plaintiff refused placement in the Babcock Center because she
believed that the facility could not safely provide her with appropriate services. In July or August
2003, Plaintiff’s mother left the state, and DDSN made an emergency placement of Plaintiff in a
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CTH II facility in Newberry, South Carolina to receive “respite,” or temporary, services. According
to Defendants, Plaintiff was placed with a CTH II provider because no other facility was able to
provide services to Plaintiff on such short notice.
With respect to the within action, Defendants filed a motion for summary judgment on June
14, 2004. Plaintiff filed a response in opposition to Defendants’ motion on July 9, 2004, to which
Plaintiff filed a reply on July14, 2004. The court held a hearing on September 16, 2004. By order
filed December 9, 2004, the court granted Defendants’ motion for summary judgment except as to
Plaintiff’s “reasonable promptness” claim as set forth in her third cause of action. Based upon
statements made at the hearing, the court found Plaintiff’s “reasonable promptness” claim to be moot
because Plaintiff had received the services requested through the CTH II respite placement. ECF
No. 63. After seeking relief pursuant to Fed. R. Civ. P. 59(e), Plaintiff filed a notice of appeal to the
Fourth Circuit on May 23, 2005.
Meanwhile, on or about April 27, 2005, DDSN notified Plaintiff that she no longer was
eligible for services under the MR/RD program because she no longer met the Intermediate Care
Facility for the Mentally Retarded (ICF/MR) level of care criteria. Plaintiff appealed DDSN’s
determination and a hearing convened before a hearing officer on January 24-25, 2006 and April 2728, 2006. On June 5, 2006, the hearing officer affirmed DDSN’s determination. The hearing officer
noted that between the ages of twelve and eighteen years Plaintiff was administered four
psychological tests, and none of the qualified psychological examiners who performed the tests
found Plaintiff to be mentally retarded. The hearing officer further observed that no school
psychological examiner placed Plaintiff into a special education program for the mentally retarded.
The hearing officer also noted that after the age of eighteen, Plaintiff was administered three
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psychological tests. One of the examiners determined that Plaintiff is not mentally retarded, and the
other two determined that she is mentally retarded. Based on all the information, the Hearing Officer
concluded that Plaintiff is not mentally retarded and does not meet the Medicaid criteria of ICF/MR
level of care under South Carolina applicable regulations. ECF No. 208-15.
Plaintiff appealed the hearing officer’s decision to a state administrative law judge (ALJ).
By order dated June 28, 2007, the ALJ directed the hearing officer to determine Plaintiff’s interim
care pending the conclusion of the appeal process and to consider additional material evidence that
had not been available at the time of the June 5, 2006 decision. By order dated July 30, 2007, the
hearing officer found that Plaintiff was experiencing significant anxiety residing in the Newberry,
South Carolina CTH II facility. The hearing officer stated that Plaintiff’s relationship with the CTH
II staff had been poisoned and that being forced to stay at the CTH II placement in Newberry, South
Carolina, compromised her health and safety.
The hearing officer noted that Defendants DHHS and DDSN are responsible for establishing
and supervising Plaintiff’s plan of care and the services she receives, and therefore the determination
that Plaintiff should receive respite services rather than residential habilitation services was
appropriate. Although Plaintiff had requested to be placed in a group home run by the United
Cerebral Palsy of South Carolina, the hearing officer noted that United Cerebral Palsy of South
Carolina is not an authorized provider of respite services, and that South Carolina law prevented
DDSN from funding this organization for respite services. The hearing officer concluded that
Plaintiff should be moved to a CTH II qualified to provide respite services, and that the new CTH
II should be as close as possible to Plaintiff’s home community. Consequently, Plaintiff was placed

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in respite services in a CTH II facility in Aiken, South Carolina, where she remains to this day.
Plaintiff did not appeal the ALJ’s July 30, 2007 decision.
Regarding this court’s order of December 9, 2004, the Fourth Circuit issued an opinion on
September 19, 2007, in which it addressed, among other things, Plaintiff’s claim that the court erred
in dismissing as moot her claim that Defendants violated the Medicaid Act by providing her with
temporary respite services instead of providing her, with “reasonable promptness,” residential
habilitation services approved in her 2003 plan of care. See Doe v. Kidd, 501 F.3d 348 (4th Cir.
2007). The Fourth Circuit observed that, “whatever misstatements or understatements [Plaintiff]
made during the summary judgment hearing, she did not intend to relinquish her right to have the
district court consider her reasonable promptness claim on its merits.” Id. at 355. The Fourth Circuit
noted that Defendants still had failed to provide Plaintiff with residential habilitation services; rather
Defendants had maintained Plaintiff in the CTH II for respite services pending a final decision in
state court as to Plaintiff’s status. The Fourth Circuit determined that Plaintiff’s placement was
temporary and that the issues presented in her reasonable promptness claim were legally cognizable
and ripe for consideration. The Fourth Circuit thereupon held that Plaintiff could proceed under §
1983 to address any failure by Defendants to comply with the reasonable promptness provision in
the Medicaid Act, and remanded the case to this court for further review.
On November 15, 2007, the hearing officer issued a supplemental administrative order in
which he considered the new evidence submitted by Plaintiff. The hearing officer determined,
among other things, that DDSN was correct in determining the developmental period for purposes
of defining mental retardation as prior to the age of eighteen years. The hearing officer concluded
that the record included no report from an appropriately trained psychologist, psychiatrist, or
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psychometric examiner supporting Plaintiff’s contention that she is mentally retarded. The hearing
officer again determined that Plaintiff does not meet the definition of a mentally retarded individual,
and, therefore, does not satisfy the ICF/MR level of care criterial necessary for Medicaid MR/RD
waiver services. ECF No. 208-5. On June 20, 2008, the ALJ affirmed the hearing officer’s decision.
Plaintiff appealed the ALJ’s decision to the South Carolina Supreme Court.
On May 14, 2009, Defendants filed a motion for summary judgment in this court as to
Plaintiff’s “reasonable promptness” cause of action. Plaintiff filed a response in opposition on May
21, 2009, to which Defendant filed a reply on May 28, 2009. Also on May 14, 2009, Plaintiff filed
a motion for summary judgment, to which Defendants filed a response in opposition on May 21,
2009. The court held a hearing on May 29, 2009.
On January 29, 2010, the court issued an order in which it concluded that, under Bruggeman
ex rel. Bruggeman v. Blagojevich, 324 F.3d 960 (7th Cir. 2003), Plaintiff’s rights under the Medicaid
Act are limited to receiving funding with reasonable promptness. The court determined 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 found that Defendants fulfilled their obligations in this
regard, and that Plaintiff’s challenge to DDSN’s level of care and placement decisions must be made
through the administrative procedures available to her in state court. Accordingly, the court granted
Defendants’ motion for summary judgment and denied Plaintiff’s motion for summary judgment.
ECF No. 167. Plaintiff filed a notice of appeal on February 12, 2010.
On March 24, 2011, the Fourth Circuit issued an opinion affirming in part, reversing in part,
and again remanding the case with instructions. See Doe v. Kidd, 419 F. App’x 411 (4th Cir. 2011).
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The Fourth Circuit noted that DDSN had found in 2003 that Plaintiff’s placement at a CTH I or SLP
II setting would best meet her medical need for residential habilitation services in the least restrictive
environment. On the narrow issue of whether the requisite services were provided to Plaintiff in a
reasonably timely manner, the Fourth Circuit found that, after Plaintiff rejected the CTH I services
offered in June 2003, Defendants were obligated to present her with alternative CTH I (or SLP II)
services within a reasonably prompt period of time. The Fourth Circuit reiterated that Plaintiff has
no right to chose between CTH I and CTH II services, but that she has a right to choose among
qualified CTH I (or SLP II) providers. The Fourth Circuit determined that the provision of respite
services at a CTH II facility did not relieve Defendants of their legal responsibility to subsidize
Plaintiff’s placement in a suitable CTH I (or SLP II) setting. The Fourth Circuit concluded that the
ongoing failure of Defendants to fund residential habilitation services to which Plaintiff is entitled
is the same as a failure to provide any services. Accordingly, the Fourth Circuit found it appropriate
and within the equitable powers of the court to order Defendants to finance a SLP II or CTH I
placement of Plaintiff’s choice pending the resolution of the state appellate process. The Fourth
Circuit remanded with instructions to enter summary judgment in favor of Plaintiff as to this issue,
and for the court to devise appropriate remedial relief.
On December 28, 2011, the South Carolina Supreme Court issued an opinion with respect
to Plaintiff’s appeal of the ALJ’s decision affirming the hearing officer’s determination that Plaintiff
is not mentally retarded. The supreme court found, among other things, that Plaintiff is disabled, in
part because her Full Scale Intelligence Quotient (IQ) scores beginning at age twelve ranged from
a low of sixty-six to a high of seventy-three. Doe v. S.C. Dep’t of Health and Human Serv., 727
S.E.2d 605, 609 (S.C. 2011). Under federal law, the developmental period used to determine
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supplemental security income (SSI) extends to age twenty-two. The supreme court observed that
the South Carolina Legislature in 1990 had adopted in S.C. Code Ann. § 44-20-30 a definition of
mental retardation in line with the SSI definition. Further, DDSN promulgated S.C. Code Ann.
Regs. 88-210(f), which mirrors the SSI definition with respect to the age-of-onset requirement. The
supreme court noted, however, that DDSN issued a “Policy of Determination of Eligibility” that
improperly imposed a more restrictive diagnostic criterion for mental retardation for eligibility of
waiver services in the form of an age-eighteen onset requirement. Accordingly, the supreme court
reversed and remanded “for consideration of whether, applying the proper legal standard for mental
retardation (onset prior to age twenty-two), Doe is eligible to continue to receive waiver services.”
Id. at 611.
As directed by the South Carolina Supreme Court, the hearing officer convened multiple days
of evidentiary hearings throughout 2012 and 2013. During the course of the hearings, Plaintiff filed
with the hearing officer a motion to enforce the Fourth Circuit’s order that Defendants provide
residential habilitation services to Plaintiff pending a final determination as to her eligibility for the
MR/RD Medicaid waiver program. Plaintiff requested the hearing officer to either require
Defendants to provide residential habilitation services in a CTH II (not CTH I or SLP II) setting, or
issue a written order stating that the hearing officer’s jurisdiction is limited solely to the issue of
whether Plaintiff is mentally retarded. By order dated April 28, 2013, the hearing officer determined
that he is without jurisdiction to revise his unappealed July 30, 2007 order moving Plaintiff from
Newberry, South Carolina to a different CTH II qualified to provide her with respite services. The
hearing officer also determined that he is without authority to enforce any decision issued by the
Fourth Circuit. Consequently, the hearing officer denied Plaintiff’s motion. ECF No. 226-5.
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II. DISCUSSION
Against this extensive factual and procedural history Plaintiff argues that the hearing officer’s
July 30, 2007 order moving Plaintiff to a CTH II in Aiken, South Carolina “superseded” DDSN’s
authorization of a CTH I or SLP II placement for Plaintiff. Plaintiff asserts that the hearing officer’s
finding regarding placement in a CTH II facility for respite services should be impressed upon the
Fourth Circuit’s opinion that Plaintiff be provided with the residential habilitation services set forth
in her 2003 plan of care. Plaintiff agues that the court is required, on remand, to order remedial relief
in the form of directing Defendants to provide Plaintiff with residential habilitation services in a
CTH II–rather than CTH I or SLP II–setting. The court notes that Plaintiff did not make this
argument to the Fourth Circuit or notify the Fourth Circuit during the pendency of its decision that
Plaintiff’s 2003 plan of care purportedly had been revised to authorize CTH II placement in lieu of
CTH I or SLP II.
The court finds no support in the record for Plaintiff’s contention that the hearing officer’s
July 30, 2007 order superseded Defendants’ determination that she is entitled to placement in a CTH
I or SLP II facility. Plaintiff originally was accepted for respite, or temporary, services, at a CTH
II home in Newberry, South Carolina, because of exigent circumstances, i.e., her mother’s inability
to continue to care for her. Plaintiff’s relationship with staff at the Newberry facility deteriorated
to the point that Plaintiff’s health was compromised. As set forth in detail hereinabove, the hearing
officer ordered that Plaintiff be moved to a different CTH II facility qualified to provide Plaintiff
with the respite services that had been approved by DDSN subsequent to Plaintiff’s emergency
placement. The court discerns no evidence that the hearing officer intended to alter the 2003 plan
of care. Rather, the hearing officer maintained the status quo with respect to respite services with
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the exception of moving Plaintiff from a deleterious situation involving the staff at the Newberry,
South Carolina facility. The transfer from one CTH II setting to another was undertaken solely to
protect Plaintiff’s health and well-being.

The court declines Plaintiff’s invitation to order

Defendants to provide her with residential habilitation services in a CTH II facility when such
placement has not been authorized by DDSN.
The court’s limited mandate from the Fourth Circuit is to direct Defendants “to provide
[Plaintiff] with services in a SLP II or CTH I facility of her choice (at least pending the outcome of
her state appeal).” Doe v. Kidd, 419 F. App’x 411, 419 (4th Cir. 2011). In this respect, Defendants
are ordered to, within thirty (30) days of the date of this order, provide Plaintiff with a list of all
potential qualified SLP II or CTH I placements, and update the list of all potential qualified SLP II
or CTH I placements every fourteen (14) days thereafter until Plaintiff’s state administrative process
is exhausted or until Plaintiff accepts a placement, whichever comes first. Plaintiff is reminded that
DDSN “selects the appropriate setting for the provision of waiver services. Once a setting is
selected, recipients have a choice of qualified providers among those who offer services in the setting
DDSN has approved[.]” Doe v. Kidd, 501 F.3d 348, 359 (4th Cir. 2007). Thus, Plaintiff is without
authority to demand services or placement different from those established by DDSN in her 2003
plan of care. The court has no intent to supplant the hearing officer’s unappealed decision moving
Plaintiff from Newberry, South Carolina to Aiken, South Carolina. However, the emergency
placement was for respite, or temporary, services only. The court discerns no conflict between the
hearing officer’s decision and the Fourth Circuit’s mandate that Defendants are obligated to provide,
or at least attempt to provide, the services and placement established in Plaintiff’s 2003 plan of care.

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Should either party unreasonably fail to comply with the court’s order as set forth
hereinabove, the opposing party may apply to the court for relief, to include contempt of court or a
finding of futility.
For the reasons stated, Plaintiff’s motion for remedial relief is granted to the extent set forth
hereinabove. Plaintiff shall move for attorneys’ fees within fifteen (15) days of the date of entry of
this order.
IT IS SO ORDERED.

/s/ Margaret B. Seymour
Senior United States District Judge
Columbia, South Carolina
August 21, 2013
Nunc pro tunc date: August 12, 2013

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