Richard Stogsdill et al v. Sebelius et al

Filing 193

ORDER granting summary judgment on Plaintiffs' claims alleging violations of 42 U.S.C. § 1396a(a)(3) (Fair Hearing Provision), 42 U.S.C. § 1396a(a)(8) (Reasonable Promptness Provision), 42 U.S.C. § 1396a(a)(10) (Amount, Duration, and Scope), and notifying parties the § 1983 allegations will be tried via a bench trial beginning Monday, April 27, 2015, at 9:30 a.m. Signed by Honorable Joseph F. Anderson, Jr. on 04/20/2015. (bshr, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Robert Levin, and Mary Self, Mother of Robert
Levin,

C/A No. 3:12-cv-0007-JFA

Plaintiffs,

vs.

ORDER

South Carolina Department of Health and
Human Services,
Defendant.

I.

INTRODUCTION

This case arises out of the reduction in benefits provided to a Medicaid-eligible individual
and seeks to challenge the policies and procedures in the operation of the Head and Spinal Cord
Injury (“HASCI”) Medicaid waiver program. In the Second Amended Complaint, Robert Levin
(“Levin”), and Mary Self (“Self”), Mother of Robert Levin (collectively “Plaintiffs”) allege
numerous causes of action; however, as a result of dispositive motions and a bench trial,1 Plaintiffs’
only remaining cause of action is for violation of 42 U.S.C. § 1983 against the South Carolina
Department of Health and Human Services (“SDHHS”).2 (ECF No. 72).

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The Order issued at the

Prior to trial, the Court issued an Order bifurcating the case into two phases. As set forth in detail in the Court’s
Pretrial Order, in Phase I would include evidence on the threshold issue of whether Levin is at significant risk of
institutionalization. Only after a determination that Plaintiffs had met their burden on this issue would the Court
proceed to Phase II, which would encompass the issue of SCDHHS’ defense of fundamental alteration. However, if
Plaintiffs failed to meet their burden on the threshold issue, the case would end at that point. (ECF No. 171).
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The Court granted summary judgment in favor of SCDHHS on Plaintiffs’ causes of action for alleged violations of
(1) statutory and constitutional due process, (2) the S.C. Administrative Procedures Act, and (3) the Medicaid Act
(ECF No. 131). The Court granted SCDHHS’ Motion for Judgment as a Matter of Law on Plaintiffs’ causes of
action for alleged violations of the American’s with Disabilities Act and § 504 of the Rehabilitation Act. (ECF No.
184).

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conclusion of the bench trial specifically requested briefing by the parties on the § 1983 claim. (ECF
No. 184). In light of those briefs and the Court’s previous rulings in this case, the Court makes the
following ruling as to Plaintiffs’ § 1983 claims.

II.

42 U.S.C. § 1983 CLAIMS

Plaintiffs have listed seven specific provisions of the Medicaid Act which they allege have
been violated by SCDHHS in its administration of services to Levin under the HASCI waiver
program.
A. 42 U.S.C. § 1396a(a)(3) – Fair Hearing
The Fair Hearing provision of the Medicaid Act requires all States provide an opportunity for
a fair hearing before the State Agency to any individual whose request for services is denied or is not
acted upon with reasonable promptness.

Plaintiffs assert SCDHHS has violated this hearing

requirement “by failing to establish a hearing system meeting the requirements of Goldberg v. Kelly
and the due process requirements of the United States Constitution. The hearing system operated by
the State is arbitrary and capricious and it is designed to exhaust all resources of appellants through
endless delays and remands and retaliation against persons who challenge DDSN and DHHS. This
system fails to provide a final administrative determination within 90 days . . .” (ECF No. 187).
As already noted by the Court in the Order on the parties cross motions for summary
judgment, Levin never alleged in the Complaint that he was denied a fair hearing, and there is no
evidence in the record to substantiate a claim that he ever requested review or reconsideration from
SCDHHS after the HASCI waiver caps were implemented. (ECF No. 131). The substance of
Levin’s claim for violations of statutory and constitutional due process merely allege that any appeal,
had it been taken, would have been futile. As already explained by the Court in its previous Order,
these speculative allegations do not give rise to a due process violation. Accordingly, the Court also

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finds that there has been no violation by SCDHHS of the Fair Hearing provision of the Medicaid Act
as to Levin.
B. 42 U.S.C. § 1396a(a)(8) – Reasonable Promptness
The Reasonable Promptness provision of the Medicaid Act provides, “all individuals who
wish to make an application of medical assistance under the plan shall have an opportunity to do so,
and that such assistance shall be furnished with reasonable promptness to all eligible individuals.” 42
U.S.C. § 1396a(a)(8). Plaintiffs have alleged that SCDHHS has failed to actually provide the
services requested with reasonable promptness because the services were not given within ninety
(90) days of the request.
Similarly to the Fair Hearing requirement, the Court has already determined that Levin has
not articulated a Reasonable Promptness claim. Specifically, this Court stated, “[t]he complaint also
alleges SCDHHS did not act with reasonable promptness in rendering a final state agency
determination by failing to adhere to the requirement that such decisions be made within ninety (90)
days. However, this allegation is only applicable to Stogsdill because Levin never requested state
agency review.” (ECF No. 131, fn 13). As such, Levin has not alleged a Reasonable Promptness
violation.
Moreover, to the extent Levin intends to raise the 2014 request for nursing services as
grounds for his Reasonable Promptness claim, the Court has already determined that this claim is not
ripe, as more fully articulated in the Court’s Order ruling on the bench trial. (ECF No. 184).
Therefore, the Court finds there has been no violation by SCDHHS of the Reasonable Promptness
provision of the Medicaid Act as to Levin.

C. 42 U.S.C. § 1396a(a)(10) – Amount, Duration, and Scope
The sufficiency provision of the Medicaid Act requires that the State provide medical
assistance to an individual in the same amount, duration, and scope as the medical assistance

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provided to other participants. The Medicaid Act also requires comparability of services for all
recipients.

However, a limitation on these requirements exists, which provides, “if CMS has

approved a waiver of Medicaid requirements under § 431.55, services may be limited as provided by
the waiver.” 42 C.F.R. § 440.250. As such, the caps set out in the HSACI waiver provide the
applicable limitations for services available to Levin.
Based on the evidence presented at the Bench Trial, this Court is not persuaded that Levin
has been denied services in the same amount, duration, and scope as those provided to others.
Plaintiffs’ attempt to point to “other waiver participants who have previously filed federal lawsuits
and have been determined by this Court not to be subject to caps on services” as evidence of
inequality among participants, is unavailing. (ECF No. 187). Judicial determinations that services
should be provided in excess of the waiver cap are not tantamount to agency action authorizing such
services. As such, these determinations cannot form the basis of Levin’s claim, and the Court finds
this violation to be without merit.
D. 42 U.S.C. § 1396a(a)(17) – Reasonable Standards
Plaintiffs have also alleged SCDHHS has violated the Medicaid Act by failing to establish
reasonable rules and standards for determining eligibility for and the extent of medical assistance
needed, by allowing agency employees to make rules in an arbitrary and capricious manner, and by
allowing persons who are not physicians to override physician’s orders.

Plaintiffs assert that

SCDHHS has also failed to defer to the treating physicians of participants in determining the medical
necessity of services. In opposition, SCDHHS argues that the testimony presented at the bench trial
demonstrates that Levin has received all necessary services.
The Court finds that additional testimony and evidence is needed in order to fully assess the
viability of Plaintiffs’ claim. Therefore, the Court will defer a ruling on this issue until after the
second bench trial. However, in accordance with the Court’s earlier ruling, Plaintiffs will not be

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permitted to present evidence on the 2014 request for nursing services because this issue is not ripe
for adjudication by this Court. (ECF No. 184).
E. 42 U.S.C. § 1396a(a)(30) – Payment of Rates
Plaintiffs contend SCDHHS has failed to comply with the Medicaid Act by failing to pay
rates that are sufficient to provide access to services Levin needs to remain in the community.
Specifically, Plaintiffs maintain that the rates paid to respite caregivers are significantly low, which
creates a hardship in individuals who want to remain in their homes. SCDHHS argues there is no
evidence to suggest that Levin is unable to receive access to the services he needs to remain in the
community.
The Court is in need of additional testimony and evidence in order to fully evaluate this
claim. As such, the Court will defer a ruling on this issue until after the second bench trial.
However, as previously noted and in accordance with the Court’s earlier ruling, due to ripeness
concerns, Plaintiffs will not be permitted to present evidence on the 2014 request for nursing
services. (ECF No. 184).
F. 42 U.S.C. § 1396n(c)(2) – Feasible Alternatives
Under the Feasible Alternatives provision of the Medicaid Act, States are required to inform
the legal representative of participants of the feasible alternatives under the waiver and give the
choice of either institutional or home and community-based services when the participant is
determined to be likely to require the level of care provided in a hospital. Plaintiffs argue they were
not properly advised of these alternatives. SCDHHS counters that it was not required to provide such
information because Levin was not at risk of re-institutionalization.
The Court finds that additional testimony and evidence is needed in order to determine the
merits of this claim. Therefore, the Court will defer ruling on this issue until after the second bench
trial.

However, to the extent Plaintiffs intend to present evidence as to any failure to “inform

Plaintiffs and other waiver participants that the caps may not be enforced because they were

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established without promulgating regulations,” such evidence will not be allowed, given the Court’s
prior ruling that the waiver caps were legally and properly implemented. (ECF No. 131).
G. 42 C.F.R. § 441.302 – Protection of Waiver Participants
Plaintiffs’ final claim alleges that SCDHHS has acted with conscious indifference to Levin’s
needs in violation of its obligations to ensure the protection of waiver participants and to financially
account for the Medicaid program. As this provision is broad and appears to encompass many of the
other alleged violation, the Court will require additional evidence and testimony on this issue in order
to render a ruling. As such, the Court will defer ruling on this issue until after the second bench trial.
IV.

CONCLUSION

Based on the record before the Court, SCDHHS is granted summary judgment on Plaintiffs’
claims alleging violations of 42 U.S.C. § 1396a(a)(3) (Fair Hearing Provision), 42 U.S.C. §
1396a(a)(8) (Reasonable Promptness Provision), and 42 U.S.C. § 1396a(a)(10) (Amount, Duration,
and Scope). The remaining § 1983 allegations will be tried via a bench trial beginning Monday,
April 27, 2015, at 9:30 a.m.

IT IS SO ORDERED.

April 20, 2015
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

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