Richard Stogsdill et al v. Sebelius et al
ORDER Court finds that Plaintiffs have failed to show by a preponderance of the evidence that Defendant retaliated against them in violation of the American with Disabilities Act and finds in favor of Defendant. Signed by Honorable Joseph F Anderson, Jr on 7/25/17. (mflo, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Richard Stogsdill, Nancy Stogsdill, Mother of
Richard Stogsdill, Robert Levin, and Mary
Self, Mother of Robert Levin,
C/A No. 3:12-0007-JFA
South Carolina Department of Health and
This case arises out of the reduction in benefits provided to two Medicaid-eligible
individuals, Richard Stogsdill and Robert Levin, and the impact upon their mothers, Nancy
Stogsdill and Mary Self, respectively, (collectively “Plaintiffs”).1 Plaintiffs filed this action
against Defendant South Carolina Department of Health and Human Services and alleged
numerous claims. The only remaining claims to be addressed by this Court is whether Defendant
retaliated against Plaintiffs in violation of the anti-retaliation provision contained in the
American with Disabilities Act. See 42 U.S.C. § 12203(a).
FACTUAL AND PROCEDURAL HISTORY
The extensive history of this case and applicable statutory framework are detailed in this
Court’s prior orders. See, e.g., ECF Nos. 131, 184, 193. After this Court entered a judgment in
this case, Plaintiffs appealed to the Fourth Circuit. ECF Nos. 249, 250, 252. On January 5, 2017,
the Fourth Circuit issued an opinion dismissing the appeals and remanding the case for further
To avoid confusion, this Court will refer to Plaintiffs by their first names.
proceedings due to this Court’s failure to dispose of the retaliation claims raised in the second
amended complaint. ECF No. 266. Upon receipt of the mandate, this Court scheduled an
evidentiary hearing as to the retaliation claims to be held on Monday, February 27, 2017. ECF
Nos. 272, 273.
On February 7, 2017, Defendant filed a motion for judgment on the pleadings to which
Plaintiffs filed a response in opposition along with several attachments. ECF Nos. 275, 278, 286–
89. On February 21, 2017, Defendant filed a reply. ECF No. 282. Due to a status conference held
on February 22, 2017, the Court rescheduled the evidentiary hearing to be held on March 29,
2017. ECF No. 284. On March 16, 2017, in an effort to fully address the retaliation claims, this
Court denied the Defendant’s motion for judgment on the pleadings. ECF No. 294.
On March 29, 2017, the Court held a pretrial conference. ECF Nos. 303–04.
Subsequently, due to the multiple witnesses called and the parties’ conflicting schedules, this
Court held a bench trial for four days over the course of three months—March 30, 2017, March
31, 2017, May 8, 2017, May 12, 2017—with only closing arguments and deposition testimony
allowed to be provided on June 13, 2017. ECF Nos. 306–07, 312, 314, 319, 330-1, 330-2, 335,
After receiving the testimony, carefully considering all the evidence, weighing the
credibility of the witnesses, reviewing the exhibits and briefs, and studying the applicable law,
this Court makes the following Findings of Fact and Conclusions of Law, in accordance with
Rule 52(a)(1) of the Federal Rules of Civil Procedure, on Plaintiffs’ claims of retaliation. The
Court notes that to the extent any of the following Findings of Fact constitute Conclusions of
On the last day of trial—May 12, 2017—Plaintiffs filed a formal motion for reconsideration of this
Court’s prior rulings for claims previously disposed in 2014 and 2015. On July 25, 2017, this Court
denied the motion. ECF No. 341.
Law, they are adopted as such, and to the extent any Conclusions of Law constitute Findings of
Fact, they are so adopted.
FINDINGS OF FACT
Based upon the testimony adduced at the bench trial held on March 30, 2017, March 31,
2017, May 8, 2017, and May 12, 2017,3 the Court makes the following findings of fact.4
A. Richard Stogsdill5
1. Richard was born 3 months premature and suffers from cerebral palsy. ECF No. 310
at 5. Over the last few years, Richard has had several kidney stones resulting in
surgeries or trips to the emergency room. Id. In addition, Richard suffers from gas
build-up behind his ribcage due to the curvature in his spine and constipation. Id.
Richard requires assistance to perform his daily needs due to his condition. Id. at 7.
2. Prior to the January 1, 2010, waiver changes, Richard was receiving 96 hours of
Personal Care Aide and Companion services per week. He also received
approximately 36 hours per week of Respite Care. Personal Aide II services consist
of hands-on care that a participant requires for daily living, such as bathing, dressing,
and toileting. Adult Companion services are similar, except they include an aspect of
The testimony of Dr. Shissias, Dr. Crisp, and Dr. Munn were provided via depositions filed with the
Court on June 12, 2017, and June 13, 2017. ECF Nos. 330-1, 330-2, and 336-1. In addition, closing
arguments occurred on June 13, 2017. ECF No. 335. Moreover, to the extent such testimony was relevant
to the issue of retaliation, the Court has considered testimony previously provided if so directed by a
The summaries that follow represent, in many instances, only a small portion of the testimony provided
by each witness. After careful review of the record, the Court has determined that large sections of
testimony elicited by Plaintiffs are irrelevant to the current issue before the Court or in violation of this
Court’s prior orders. For example, Plaintiffs’ counsel spent significant time discussing the budgetary
schemes or CMS’s denials of Defendant’s waivers. As such, this testimony is not helpful to the Court in
issuing a ruling on Plaintiffs’ retaliation claims and is excluded.
Paragraphs 2, 3, and 4 are taken from this Court’s previous order as they align with the discovery
presented in this case. ECF No. 131.
community integration. Respite Care includes a range of services designed to
provide care for the participant when the normal caregiver is absent or needs relief.
The January 1, 2010, waiver capped any combination of Personal Aide II services
and Adult Companion services at 28 hours per week. Respite Care services under the
January 1, 2010, waiver is typically 68 hours per month, but can be increased up to
240 hours per month under certain circumstances.
3. Effective January 1, 2010, Richard’s Personal Aide II services and Adult Companion
Services were reduced to 28 hours per week combined. Respite Care services were
limited to 68 hours per month; however, an increase of 172 hours per month of
Respite Care was granted following the reductions at the request of Richard’s service
coordinator. Richard’s Occupational and Speech Therapies were discontinued.6
4. On February 13, 2009, after Richard’s services were reduced, he sought
reconsideration by [the South Carolina Department of Disabilities and Special Needs
(“SCDDSN”)]. This request was subsequently denied on March 3, 2009. On April 1,
2009, Richard then appealed the SCDDSN determination to the Appeals Division.
The Appeals Division affirmed the reductions on September 14, 2010. This decision
was then appealed to the South Carolina Administrative Law Court (“ALC”) on
October 20, 2010. While the appeal was pending at the ALC, the current suit was
filed in Federal Court. On March 13, 2013, the ALC issued an order upholding the
decision rendered by SCDDSN. Subsequently, Richard appealed the ALC decision
to the South Carolina Court of Appeals.
5. On September 10, 2014, the South Carolina Court of Appeals issued an order on
several issues raised in this Court. Moreover, the case was “remanded for
These therapies may still be available to participants through the Medicaid State Plan.
consideration of the appropriate services to be provided without the restrictions of
the 2010 waiver.” Stogsdill v. S.C. Dep’t of Health & Human Servs., 763 S.E.2d 638,
645 (S.C. Ct. App. 2014). On January 20, 2016, the South Carolina Supreme Court
dismissed Nancy and Richard’s appeal as improvidently granted and, on March 24,
2016, it dismissed their petition for rehearing. On October 3, 2016, the United States
Supreme Court denied the petition for a writ of certiorari.
B. Nancy Stogsdill
6. Nancy is the mother of Richard and has been an active caretaker in his life since he
was born. Nancy testified that prior to Richard’s graduation from high school, she
did not have any issues with Richard’s services. ECF No. 310 at 14. When Richard
graduated from high school, he lost the assignment of an attendant, who was with
him from 7:30 a.m. until approximately 3:00 p.m. Id. at 16. Consequently, Nancy
requested additional hours to fill this new need. Nancy testified that she was
“definitely not blaming [SCDDSN]” for losing the previous hours that Richard
received during school. Id.
7. Nancy testified that she had not filed a grievance against SCDDSN until February
13, 2009,7 when her request for additional services was denied. Id. at 17. In her
appeal, it stated, “Please assure us that there will be no reduction in services or
retaliatory actions taken against Richard or his family during this appeal.” Id. at 21.
Nancy testified that her concern stemmed from the failure to provide Richard’s
services within a “reasonable period of time” and their denial “for no apparent
reason,” adding that “through the years there have been quite obvious instances of
Her appeal was filed on or about February 13, 2009. ECF No. 310 at 23. It is unclear whether the
“grievance” filed was separate from the appeal itself. Exhibit 91.
retaliation”; however, no specific instances were provided at that time nor did Nancy
explain why she did not file a grievance previously. Id. at 21.
8. Nancy testified that a hearing was held on May 27, 2009, and a decision was
rendered on November 16, 2009, in which the Defendant’s hearing officer remanded
the case back to SCDDSN with directions to “take into consideration the doctor’s
orders.”8 Id. at 24–25. Nancy testified that DDSN did not conduct an assessment;
however, it is unclear to this Court whether Nancy was referring to an assessment or
the independent assessment that she contends Richard needs. Id. at 25. In addition,
Nancy testified that when the case was remanded, at the end of 2009, “[a]bsolutely
nothing happened.” Id. at 26. Apparently, in 2009, a request for medical records was
made by the agency and Nancy provided the records to them. Id. at 27.
9. Nancy testified that she did not receive notice of the caps to be imposed in the
waiver of 2010 (the “2010 caps”); however, she heard rumors of them through a
group called Voices for the Voiceless. Id. at 29–30, 33. Nancy testified that “the fact
that decisions were not made in a reasonable period of time, [she felt] like [they]
never had reasons for decisions, never had reasons for cutbacks. [They] had cutting
of the services. That in itself to [her was] retaliation.” Id. at 31.
10. On December 31, 2009, in an effort to prevent the 2010 caps from going into effect,
Nancy and Richard participated in filing a lawsuit. Id. at 32–35. In January 2010, the
South Carolina Supreme Court dismissed the suit. Id. at 35.
11. Due to the 2010 caps, Richard’s respite hours were reduced and his attendant hours
were capped. Id. at 36. Nancy requested a fair hearing on Richard’s behalf. Id.
The Court notes that Defendant received the appeal at the “Appeals & Hearings” Division on April 1,
2009. Exhibit 91.
Nancy testified she was retaliated against because the “executive director of the
[SC]DDSN Board in Kershaw County and service coordinator came to my house
and announced that . . . these cuts were going into effect, and they wanted to know
how [she] was going to use them.” Id. at 36.
12. Nancy testified she became aware of a termination notice sent by the service
coordinator, which informed Richard’s providers that he was moving out of state so
his services were being terminated. Id. at 37. However, Nancy also testified that,
when she notified the agency that there had been a mistake, “they jumped on it pretty
fast [and she didn’t] believe any of [Richard’s] services were cut.” Id. at 99.
13. Nancy testified that she filed a second request for a fair hearing to avoid the
reduction of hours from 55 to 28 in December 2009; however, she did not have a
hearing until May 11, 2010. Id. at 41. A decision was issued on September 14, 2010,
which was appealed to the South Carolina Court of Appeals. Id. at 43. Richard and
Nancy appealed the South Carolina Court of Appeals’ decision regarding the 2010
caps to the South Carolina Supreme Court. Id. at 45.
14. Moreover, while the state lawsuit was pending, Nancy testified that she and Richard
filed this federal lawsuit with Robert and Mary in January 2012 and filed an
amended complaint in January 2014. ECF Nos. 1, 72.
15. Nancy testified that she was informed the service coordinator was the only route she
could take to obtain services and provided the service coordinator with everything
that she requested. However, as to Nancy’s allegation that Richard was never
assessed, Nancy stated that the service coordinator “did come in to assess
[Richard].” ECF No. 310 at 48.
16. Nancy testified that she gave Dr. Munn’s order for 56 nursing hours to the service
coordinator between June 2014 and October 2014, but it was never explained why
Richard was only awarded 14 nursing hours in October 2014. Id. at 50–51.9
Moreover, Nancy’s request for additional attendant care hours was not granted until
October 2016. Id. at 52.
17. Nancy testified regarding Lennie Mullis’ position as Richard’s psychological service
provider. Id. at 58. Nancy testified that Ms. Mullis provided affidavits in support of
Richard’s increased services for the case filed in the South Carolina Supreme Court
and both of the fair hearing appeals. Id. at 58. However, Ms. Mullis advocated for
other persons as well. Id. In June 2010, Ms. Mullis was terminated as a service
provider, which would eliminate her ability to provide services to Richard in that
capacity if she did not appeal. Nancy testified that she did not speak with Ms. Mullis
about retaliation. Nancy testified that Richard was close to Ms. Mullis; however, she
did not provide specifics as to how Richard was impacted by Ms. Mullis’s
termination. Id. at 84.
18. Nancy testified that Suzanne Yankovich was Richard’s service coordinator in 2013.
Id. at 62. Nancy testified that she requested additional respite hours due to her
husband’s failing health, but the service coordinator could only authorize 68 respite
hours and recommend up to 240 hours. Nancy did produce a letter and affidavit from
However, as provided in later testimony, the 56 nursing hours requested were deemed unjustified based
upon Dr. Platt’s review of the records and the undiagnosed, as well as sporadic, pain experienced by
Dr. Munn—Richard’s primary care physician—in an effort to show compliance with
each request made by the service coordinator.10
19. Nancy testified that she offered to allow Dr. Tan Platt into her home to assess
Richard while her attorney was present or make Richard’s physician available via
deposition. Id. at 74–75. Nancy testified that she felt the statements of Defendant’s
counsel to the South Carolina Supreme Court were retaliatory because he stated that
Dr. Platt was unable to perform the assessment due to Nancy or her counsel’s actions
and made other allegedly inaccurate statements. Id. at 76–77.11 Nancy testified that,
after she agreed to allow Dr. Platt to perform an assessment, Richard was awarded
additional personal care attendant hours; however, Richard did not receive additional
nursing hours.12 Id. at 79–80. Nancy testified that she and Richard suffered from the
delays or denials throughout the course of their appeals. Id. at 82–83.
C. Robert Levin
As instructed, the previous background information regarding Robert was not reintroduced during this trial. The Court adopts its Findings of Facts in its previous order (ECF No.
184) as stated herein:
However, this appears to be related to the request for an independent evaluation, which Nancy and
Richard were not entitled to receive. ECF No. 310 at 66.
Plaintiffs’ counsel later argued that the statements of Defendant’s counsel were retaliatory because he
misled the South Carolina Supreme Court by stating that the CMS waiver had the force and effect of law
as well as “CMS can change the waiver on a dime.” ECF No. 310 at 145–46. However, even if this Court
considered the statements, review of the oral arguments made before the South Carolina Supreme Court
causes this Court to find Plaintiffs’ have not met their burden of proof to show this action was an adverse
action made to retaliate against them—Defense counsel merely represented his client. Available at
http://media.sccourts.org/videos/2014-002513.mp4 at 9:10-10:15, 16:50-17:30.
Nancy testified that she felt it was a futile process to start another administrative appeal to ask for the
nursing hours previously requested. ECF No. 310 at 80.
20. Robert is a Medicaid-eligible disabled adult who has been receiving services under
the HASCI waiver program. In 2001, Robert sustained a massive head injury when
he fell off a moving truck while attempting to take pictures of Ground Zero in the
days following the 9/11 terrorist attacks. Robert suffered a brain stem bleed on the
right side of his head, requiring removal of a portion of his brain. He initially spent
several months in the hospital obtaining treatment and undergoing several surgeries.
Ultimately, the traumatic nature of the injury rendered Robert a wheelchair-bound
21. For the first four years after Robert’s accident, he resided in a nursing home facility
approximately 150 miles roundtrip from his mother’s home. After daily visits to the
nursing home to assist in the care of her son, Mary elected to remove Robert from
the facility and provide care for him at home. Prior to the 2010 waiver caps, Robert
received 56 hours of Attendant Care/Personal Services per week. However, effective
January 1, 2010, Robert’s Attendant Care/Personal Services were reduced to 49
hours per week. In addition to these services, Robert is also authorized for 30 hours
per year of back up emergency attendant care for use through an agency, should one
of his attendants not be available to provide his regularly scheduled care, and he also
receives incontinence supplies through both the Medicaid Sate Plan and the HASCI
22. Robert’s daily ritual of care is lengthy and time consuming. Robert is not totally
paralyzed, as he has some limited movement in his limbs; however, he requires
assistance with all of his activities of daily living, including toileting, eating, and
dressing. Due to the nature of Robert’s injury, he is unable to speak and merely
expresses pain, discomfort, or agitation by grinding his teeth or crying out. His
caregivers conduct range of motion exercises in order to prevent limb cramping and
spasticity, which helps Robert maintain a more normal posture.
D. Mary Self
23. Mary is the mother of Robert and a retired licensed practical nurse (LPN). She has
selflessly cared for her son since his disabling accident, which occurred
approximately sixteen years ago.
24. Mary testified that Robert’s service coordinator, Carmen Hay, informed her that
Robert’s hours would be cut by 1 hour a day when the 2010 caps were implemented.
ECF No. 311 at 143. In an effort to prevent the 2010 caps from going into effect,
Mary participated in the lawsuit filed by Nancy and others in the South Carolina
Supreme Court on December 31, 2009. Id.
25. Mary testified regarding the filing of a workers’ compensation claim against her by a
previous caretaker, who was injured while caring for Robert. Id. at 146. Mary
testified that the process involved in the workers’ compensation claim was
“absolutely adverse and retaliatory and just very negligent. It was just really
devastating.” Id. at 148.
26. Mary testified that she asked Coordinator Hay if there were additional hours or
services at least twice, but she was never provided information. See, e.g., id. at 145,
150. Mary testified that the new service coordinator, Tanya Graham, tried to obtain
additional hours, but she informed Mary that “there are absolutely no kind of hours
available to [Mary and Robert].” Id. at 154. Mary claimed that the refusal to offer
additional services was “really retaliatory.” Id. at 155. Mary testified that, while her
husband’s health was deteriorating due to a tumor, she was not provided additional
services and repeatedly requested an assessment “through [her] counsel to the
service coordinator and to counsel for [Defendant].” Id. at 160.
27. Mary testified that the requirement of a release to obtain medical records was a
pretext because Coordinator Hay did not send the medical records that were
requested once the release was signed in 2015. ECF No. 316 at 20. Mary testified
that, prior to her request for nursing services, the service coordinator did not have
any issues obtaining medical records.
28. Mary testified that, in 2015, there was an offer for Dr. Platt to perform an
assessment. Mary testified that she requested an independent assessment. ECF No.
311 at 160–61.
29. Mary testified regarding Robert’s hospitalization on December 31, 2016. ECF No.
316 at 52–53.
E. Witness Testimony
Plaintiffs presented fourteen witnesses, including the parties, to testify on the issue of
a. Kara Lewis
30. Ms. Kara Lewis is employed by Defendant as the program manager in the Division
of Community Options for Defendant. Ms. Lewis supervises staff who manage
quality and waiver contractors as well as those who work with the providers for
waiver programs.13 Ms. Lewis described the process that a participant may follow in
order to obtain additional services, beginning with the service coordinator and
SCDDSN is one of the contract providers.
working one’s way up to an appeal.14 Ms. Lewis has worked as an employee of
Defendant for approximately twenty-six years, but she explained that she would not
know of an instance when a medical director was required to enter the home of a
waiver participant due to her position.15 Finally, Ms. Lewis was uncertain whether
Defendant had an anti-retaliation policy in place. ECF No. 310 at 136.
b. Elizabeth Hutto
31. Ms. Elizabeth Hutto began working for Defendant in April of 2012. Originally, Ms.
Hutto “was the manager over the Appeals and Hearings Division and the Third Party
Liability Division.” ECF No. 310 at 138–39. While Ms. Hutto was in charge of the
hearing division, she issued a decision “saying that hearing officers do not have the
authority to exceed waiver limits.” Id. at 141. Thereafter, she became the “interim
CFO” before obtaining her current position as the “deputy director for eligibility.”
Id. at 138–40. Ms. Hutto explained that she processes Medicaid applications and
determines if individuals are eligible for Medicaid; however, she does not “deal with
how the services are provided.” Id. at 139.
Ms. Lewis explained that the service coordinator has sole authority to approve or deny services
requested by participants. She clarified that, if a question arises, the service coordinator or the case
manager has the ability to seek consultation with the supervisor. Ms. Lewis described the process a
participant may follow in order to obtain additional services as the following: (1) the patient submits a
request for services to the service coordinator; (2) the service coordinator may issue a denial or approval
of the service requested (unless an uncertainty warrants a meeting with the supervisor); (3) if the service
is denied, the participant may file for reconsideration of the request; (4) if the reconsideration is denied,
an appeal may be filed. ECF No. 310 at 130.
Specifically, Ms. Lewis stated that she was “not aware of a situation where [the medical director]
demanded it.” ECF No. 310 at 134. She thought “probably on some occasions he is requested to go in to
assess a home setting for the benefit of the client or the family.” Id. Moreover, Ms. Lewis testified that
she was not aware of any specific instances “[b]ut that’s not [her] role right now. So [she] wouldn’t be
aware of that.” Id.
c. Dr. Beverly Buscemi
32. Dr. Beverly Buscemi has been the “state director for [SCDDSN]” since November
2009.16 ECF No. 311 at 43. Dr. Buscemi is “responsible for the coordination of
services for individuals with intellectual disabilities, related disabilities, total
disabilities, head and spinal cord injury, and individuals diagnosed with autism
spectrum disorder.” Id. Dr. Buscemi explained that she could speak about the
systems in place to evaluate the types of services offered, the amount of those
services offered, and the authorization by Medicaid; however, she could not speak to
Plaintiffs’ cases specifically. Id. at 45.
33. Dr. Buscemi stated that she was generally aware of Richard’s appeal for a fair
hearing filed in February 2009, which was remanded in November 2009 for Richard
to be assessed while Dr. Buscemi was the director of SCDDSN. Id. at 47. Dr.
Buscemi testified that she knew “we had to work with [Defendant] because
[SC]DDSN is not given the authority to authorize services above that and the cap.
And so we have to work with [Defendant] as the Medicaid entity on what that
process would look like and how we would comply with any Orders.” Id. at 47.
34. Dr. Buscemi issued a letter to Nancy denying the request for reconsideration, which
stated that SCDDSN could not authorize services above the caps stated by Medicaid.
Id. at 48. Dr. Buscemi confirmed the appeals process was as Ms. Lewis articulated—
first to the service coordinator, then the supervisor, and onto an official appeal,
which is reviewed by SCDDSN staff with a recommendation proposed to the
director. Id. at 49–50. Dr. Buscemi provided a brief overview of the service
SCDDSN is an entity that operates subject to Defendant’s authority. Thus, Defendant is the state
agency that administers the waiver program and SCDDSN is the entity responsible for the coordination of
coordinator’s responsibilities, such as a yearly plan, two home visits, and at least
monthly contact to review the service plan (which does not need to be face-to-face).
35. Dr. Buscemi explained that a letter was sent to families notifying them of the
reduction in services due to a change in the waiver.
d. Catherine D. Shealy
36. Ms. Catherine Shealy works in SCDDSN’s District One Office under her supervisor,
John King. ECF No. 311 at 117. One of her responsibilities is to review requests for
respite care services. Id. at 118. Ms. Shealy testified regarding the general process of
evaluating a request and explained that she reviews the request as well as additional
information regarding the patient with her supervisor. Id. at 119. At one time, Ms.
Shealy reviewed Nancy and Richard’s request for respite care; however, she testified
at the trial that she had no collection of this review, which occurred approximately
seven years ago. Id. at 128–131.
e. John King
37. Mr. John King was employed by SCDDSN for 11 years and recently retired. He was
the District One Director for SCDDSN and his responsibilities included reviewing
the number of respite hours approved for an applicant. ECF No. 311 at 134–35. Mr.
King testified that, within his assigned district, the number of respite care hours were
capped at 240 hours. Id. at 134. Mr. King testified that he had no knowledge of an
applicant receiving more than 240 hours through the central office. Id. at 135.
38. He testified that requests for more than 68 respite care hours were brought to him for
his review by Ms. Shealy wherein she would “review the request, count the hours,
see what the individual needs, consult with the case manager and then come and
meet with [him] and make a recommendation based on her information that she has.”
ECF No. 311 at 135–36. Then, Mr. King testified that he would review the relevant
information with Ms. Shealy, such as the packet provided along with “the exact
needs of the individual, what this person based on the respite guidelines is going to
be doing for this individual, how many natural support hours, whether or not the
family works, whether or not both family members work . . . .” ECF No. 311 at 138–
f. Dr. Tan Platt
39. Dr. Tan Platt is a family physician and has been an Associate Professor of Clinical
Family & Preventative Medicine at the University of South Carolina for over 30
years. ECF No. 316 at 64. Approximately sixty percent of his responsibilities at the
University of South Carolina entail serving as a medical director for Defendant. Id.
at 65. Dr. Platt testified that he was not familiar with Robert,18 Mary or Nancy;
however, he was aware of Richard’s condition through the records that he had
reviewed. Id. at 63–64.
40. Dr. Platt testified that he is asked to review cases wherein the applicant does not
require the usual amount of care. Id. at 85. He testified that he previously reviewed
medical records regarding Richard, which were available to Defendant. Id. at 86.
Moreover, Dr. Platt confirmed through his testimony that the general process to
conduct an assessment begins with the service coordinator and progresses forward.
Id. at 88–90.
Plaintiffs’ counsel did not inquire regarding Mr. King’s review of any requests made by Plaintiffs.
Dr. Platt testified that he did not recall receiving a request that he assess Robert. ECF No. 316 at 82. He
also stated he was not aware that Robert’s mother had “asked that [Dr. Platt] come to the house to assess
41. Dr. Platt testified as to his knowledge regarding the assessment of Richard. Id. at 93–
107. However, Dr. Platt clarified during his testimony that it was an offer to visit
Richard’s home, not a mandate, in order to facilitate the process of evaluating his
condition. Id. at 100, 110. Moreover, Dr. Platt testified that he did not deem the
number of nursing hours prescribed to be necessary because the emergency visits did
not appear to be preventable by a nurse—the records indicated the pain was
associated with constipation, gas, or kidney stones and the nursing notes did not
mention pain or other problems—as well as there were only eight to nine visits to the
emergency room since December 2014. Id. at 116–19.
g. Peter Liggett
42. Mr. Peter Liggett has been the Deputy Director of Long-Term Care and Behavioral
Health for Defendant since 2012. ECF No. 316 at 137. He reports to the current
interim director, Deirdra Singleton. Id. at 139. Mr. Liggett testified that the decision
to continue litigation or settle a case would likely entail a meeting between himself,
general counsel, and the director; however, he testified that he has not been faced
with the situation. Id. at 147–48. Mr. Liggett testified that he did not make a
decision, nor was he aware of one, refusing to conduct an assessment of Richard. Id.
h. Lennie S. Mullis
43. Ms. Lennie Mullis is a psychological consultant, and she provides psychological
services to Richard and Robert.19 ECF No. 316 at 166. Ms. Mullis testified that she
previously submitted an affidavit in support of Richard receiving additional services.
However, Ms. Mullis did not begin providing services to Robert until October 2016. ECF No. 316 at
177. Moreover, Ms. Mullis testified that she stopped serving as a waiver provider in 2016. ECF No. 316
Id. at 166, 168. Ms. Mullis testified that she received notice—in approximately June
2010—that SCDDSN was recommending she be terminated as a provider. Id. at 168.
Although Ms. Mullis was terminated, she appealed the decision and was successful.
Id. at 169, 172. Ms. Mullis testified she felt that she was terminated in retaliation for
her advocacy. ECF No. 316 at 170.
i. Christian Soura
44. Mr. Christian Soura served as the Interim Director or Director of Defendant from
approximately November 20, 2014, until April 7, 2017. ECF No. 318 at 6, 52, 55,
67, 68. Mr. Soura testified that, as director, he was briefed by general counsel on
pending legal matters. Id. at 60–62. Mr. Soura testified as to the steps he took to
address issues brought to his attention—such as instructing staff to conduct
assessments, working with CMS to incorporate language allowing for hours in
excess of the caps to be awarded, and training staff against retaliation in accordance
with Defendant’s policy—although some of the steps were taken just recently. Id. at
63–64, 79, 82. Overall, Mr. Soura’s testimony provided a minute amount of
information regarding Plaintiffs in this case.
j. Dr. Charles Shissias
45. Dr. Charles Shissias is Robert’s neurologist, who has administered Botox injections
approximately every three months for the last eleven years to address Robert’s
segmental dystonia and contractures. ECF No. 330-1 at 8, 33, 34. Dr. Shissias
testified, based upon Robert’s condition as of May 2017, that Robert would need at
least 60 nursing hours “to keep him functioning at his baseline.” Id. at 14. Moreover,
Dr. Shissias testified that he believed Robert would need 84 nursing hours “if you
subtracted out family . . . [and] the state were to take total . . . charge of managing
and maintaining [Robert].” Id. In reference to the nursing hours, Dr. Shissias
testified that he felt that Robert “would continue to be at serious risk of
institutionalization without the services [he] ordered.” Id. at 18. In addition to the
nursing hours ordered, Dr. Shissias ordered personal care attendant services at all
times when a nurse is not present. Id. at 26.
46. Dr. Shissias testified that he is only one of the physicians familiar with Robert’s
needs and recognized that he only sees Robert during a “brief snapshot” every
couple months. Id. at 27. Dr. Shissias testified that he thought it would be best if
Defendant, Robert’s caregivers, and others could work collaboratively to ensure both
sides were being realistic and meeting Robert’s needs. Id. at 30. Dr. Shissias was
unable to answer the question posed by Defendant’s counsel as to whether all
medical records were provided because the records did not include his order for
nursing hours. Id. at 33. With regard to the service hours needed, Dr. Shissias
testified that he is “not, you know, . . . the final say but that [his] recommendation is
that it be care up to [60 nursing hours]” and he would be open to discussing it with
another who thought less hours were necessary. Id. at 35, 66.
47. Dr. Shissias testified that he did not notice a change in Robert’s condition from 2010
until 2014 when he wrote the order for nursing services; however, he was under the
impression that the hours were going to be decreased so he was concerned and wrote
the order. Id. at 37–38. Dr. Shissias testified that Robert’s visits were “procedures”
and “they were not consultation or office visits where [they] sit and [they] talk about
the general health of the patient, examine the patient . . . [or] review the
medications.” Id. at 40–41. Dr. Shissias testified that most of his information came
from conversations with Mary, which did not include specifics such as Robert’s
daily activities; however, Dr. Shissias had a general idea of what Robert needed. Id.
at 42–43, 50–51.
48. Dr. Shissias testified that he knew Dr. Platt and thought he was “a good and
reasonable person” with whom he would be willing to speak with regarding Robert.
Id. at 46.
k. Dr. Jeremy Crisp
49. Dr. Jeremy Crisp has been Robert’s primary care physician since January 2016. ECF
No. 330-2 at 22. Dr. Crisp testified that Robert is “at a high risk of
institutionalization, because of the risk of complications from the . . . injuries and the
ongoing problems that he has.” Id. at 6.20
50. Dr. Crisp testified that he has met with Robert twice—in January 2016 and October
2016. Id. at 22. Dr. Crisp testified that he did not discuss the specific daily needs of
Robert during these two visits. Id. at 23. Dr. Crisp testified that he has been available
to provide information regarding Robert’s medical needs and, furthermore, he
provided Robert’s medical records to the case manager in December 2016. Id. at 19.
During his deposition on May 25, 2017, Dr. Crisp evaluated a care plan for Robert that was dated May
23, 2017, which he testified was accurate based upon Robert’s daily needs from a care standpoint. ECF
No. 330-2 at 7–9. Defendant’s counsel objected to the plan because it was prepared outside the discovery
period. ECF No. 330-2 at 8. The Court would sustain this objection as it is outside the scope of discovery
and not relevant to the issue of retaliation. Moreover, review of this detailed plan reveals that the itemized
tasks and hours requiring a service do not surpass the proposed hours of each service recommended by
Dr. Platt (ECF No. 329-1) and agreed to by Defendant (ECF No. 329-2) should Robert be released from
the hospital such that he is eligible to receive services again. ECF No. 330-2 at 59–61. For example,
according to the recent plan, there appears to be approximately 77 hours of nursing care needed and 84
hours recommended by Dr. Platt. Id. Furthermore, Dr. Crisp testified that the plan of care “accurately
assess[ed] [Robert’s] need for nursing care and personal care attendant services.” ECF No. 330-2 at 10.
51. Dr. Crisp testified that he was not aware of Robert’s condition deteriorating from his
initial visit until his hospitalization in December 2016. Id. at 25–26. Dr. Crisp
admitted during his testimony that “someone being in the house” would be
sufficient. Id. at 30.
52. Dr. Crisp testified that he has a good opinion of Dr. Platt’s capabilities as a doctor.
Id. at 32. Dr. Crisp testified that a treating provider’s request for medical records
does not necessarily require a release whereas a request from Defendant’s counsel
would require a release. Id. at 34.
l. Dr. Susan Munn
53. Defendants objected to the admission of Dr. Munn’s testimony as she was not listed
as an expert by Plaintiffs and proper disclosures were not provided.21 ECF No. 296
at 5; ECF No. 310 at 65.
54. Dr. Munn testified that she has been treating Richard since 2010. ECF No. 336-1 at
7. Dr. Munn testified that she has participated in the unsuccessful attempt to
diagnose Richard’s sporadic incidents of pain. Id. at 17–18. Dr. Munn testified that
she has been contacted for advice on how to treat Richard during these incidents by
Nancy as well as hospital staff. Id. at 40.
55. Dr. Munn testified that she could not guarantee the presence of a nurse would result
in successful management of the pain every time; however, she did testify that
oftentimes Richard has not had to be ambulated on the nights a nurse is present
because she believes the nurse is able to manage the pain by administering a dose of
Valium. Id. at 40–44.
The Court discusses this objection infra.
56. Dr. Munn testified that she knew Dr. Platt and respected his professional abilities.
ECF No. 336-1 at 38.
F. Plaintiffs’ Claims
57. The only remaining claims before this Court are Plaintiffs’ claims of retaliation in
violation of the ADA.
CONCLUSIONS OF LAW
As previously stated, the extensive history of this case is detailed in this Court’s prior
orders. See, e.g., ECF No. 131. This case was appealed to the United States Court of Appeals for
the Fourth Circuit, and that court issued an opinion dismissing the appeals and remanding the
case for further proceedings due to this Court’s failure to dispose of the retaliation claims raised
in the second amended complaint. ECF Nos. 266, 272.
This Court begins by noting that Plaintiffs mentioned retaliation six times in their second
amended complaint and neither party mentioned the issue of retaliation during the initial trial in
this case. Moreover, Plaintiffs requested only protection from possible future retaliation due to
this federal lawsuit in their second amended complaint. See ECF No. 72. This Court has
attempted to address this issue on the merits and allowed Plaintiffs to present evidence in support
of their retaliation claims; however, this Court finds Plaintiffs have failed to meet their burden of
proof in this case.
During closing arguments, Plaintiffs’ counsel cited numerous cases, which are inapposite
here or do not change this Court’s analysis. See, e.g., Baird ex rel. Baird v. Rose, 192 F.3d 462
(4th Cir. 1999) (stating a student’s complaint sufficiently alleged discrimination under the ADA
on the basis that her disability was a motivating factor in her exclusion from a choir); Olmstead
v. L.C. ex rel. Zimring, 527 U.S. 581, 587 (1999) (stating placement of persons with mental
disabilities in community settings is qualifiedly appropriate “when the State’s treatment
professionals have determined that community placement is appropriate, the transfer from
institutional care to a less restrictive setting is not opposed by the affected individual, and the
placement can be reasonably accommodated . . .”) (emphasis added); Constantine v. Rectors &
Visitors of George Mason Univ., 411 F.3d 474, 500 (4th Cir. 2005) (stating “for purposes of a
First Amendment retaliation claim under § 1983, a plaintiff suffers adverse action if the
defendant’s allegedly retaliatory conduct would likely deter ‘a person of ordinary firmness’ from
the exercise of First Amendment rights”) (emphasis added).
Moreover, Plaintiffs conflate retaliation with discrimination. Plaintiffs cite the following
statute in support of their retaliation claims: “No person shall discriminate against any individual
because such individual has opposed any act or practice made unlawful by this chapter or
because such individual made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a). Although this
statute is correct, Plaintiffs only focus upon the phrase “[n]o person shall discriminate against
any individual” and overlook the requirement that the discrimination be “because such individual
has opposed any act or practice made unlawful by this chapter or because such individual made
a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or
hearing under this chapter.” Id. (emphasis added). Thus, Plaintiffs need to show more than
alleged discrimination and show there is a causal connection between the adverse action and
their protected activity.
As explained by the Fourth Circuit:
The ADA’s retaliation provision provides, in relevant part, that “[n]o person shall
discriminate against any individual because such individual . . . made a charge . . .
under this Chapter.” 42 U.S.C. § 12203(a). To establish a prima facie retaliation
claim under the ADA, plaintiffs must allege (1) that they engaged in protected
conduct, (2) that they suffered an adverse action, and (3) that a causal link exists
between the protected conduct and the adverse action. Rhoads v. F.D.I.C., 257
F.3d 373, 392 (4th Cir. 2001).
A Soc’y Without A Name v. Virginia, 655 F.3d 342, 350 (4th Cir. 2011).22 This Court repeatedly
asked Plaintiffs’ counsel to assist the Court in determining whether a causal connection or
adverse action existed—assuming there was protected activity. Unfortunately, Plaintiffs failed to
prove to this Court by a preponderance of the evidence that such adverse action or a causal
connection existed for each claim.
A succinct timeline and course of events evidencing this lack of action or connection
were provided by Defendant in its well-articulated closing argument with citations to each
applicable portion of the record. In an effort to streamline the numerous witnesses’s testimony
received in this case, the Court will discuss each in accordance with the actions argued to
During closing argument, Plaintiffs’ counsel attempted to distinguish this case from A Society Without
a Name, which appears to be one of the most recent published cases in the Fourth Circuit stating the
elements required for a retaliation claim under the ADA for the specific statute cited by Plaintiffs. For
clarification, this Court is relying upon this case for the elements needed to prove a retaliation claim.
In addition, during their closing argument, Plaintiffs cited to 42 U.S.C. § 12203(b) in support of their
retaliation claim for the first time. Notably, this section is separate from the retaliation provision of the
statute and is titled “[i]nterference, coercion, or intimidation” and, as such, is inapplicable to Plaintiffs’
retaliation claim. This Court will not allow Plaintiffs’ apparent attempt to modify their claim at the
eleventh hour. Moreover, even if this Court did consider it, the modification would not change its
Finally, Plaintiffs cited to 42 C.F.R. § 441.301, stating it reflected the requirements of a care plan such as
consideration of a physician’s order or unpaid support. However, this citation provides the requirements
for the contents of a waiver request and provides an explanation that a written plan under the waiver must
“[r]eflect the services and supports (paid and unpaid) that will assist the individual to achieve identified
goals, and the providers of those services and supports, including natural supports. Natural supports are
unpaid supports that are provided voluntarily to the individual in lieu of 1915(c) HCBS waiver services
and supports.” 42 C.F.R. § 441.301(c)(2)(v). Moreover, the law also states, “No physician member of a
review team may evaluate or assess the care of a beneficiary for whom he or she is the attending
physician.” 42 C.F.R. § 441.365(c)(2).
constitute protected conduct by Plaintiffs.23 The Court will separate the discussions to address
Plaintiff Richard Stogsdill and his mother, Nancy Stogsdill, together as well as Plaintiff Robert
Levin and his mother, Plaintiff Mary Self.
A. Plaintiffs Richard and Nancy Stogsdill
As to Plaintiffs Richard and Nancy, the following testimony was received.
1. Fair Hearing Requested in February 2009
In early 2009, Nancy was notified that Richard’s services would be changed due to his
graduation from high school, and she filed an appeal to request additional hours with the Fair
Hearings Division of Defendant (“First Fair Hearing”).24 ECF No. 310 at 95. In response to this
protected activity, she received a favorable ruling from the hearing officer—who is employed by
Defendant—and the case was remanded for consideration of his necessary services in light of his
treating physician’s order. Id. Thus, although a protected activity occurred, there was no adverse
action and, accordingly, the claim for this action fails on the second and third elements.
2. Lawsuit Regarding Upcoming 2010 Caps filed on December 31, 2009
At the end of 2009, Nancy became aware of an upcoming reduction in services, which
was to be applied across the board for Richard’s program as approved by the CMS waiver, with
notice sent to the program’s participants, scheduled to begin in 2010—the 2010 caps. On
December 31, 2009, Nancy, along with others, filed suit under original jurisdiction in the South
As to any action alleged by Plaintiffs to constitute protected conduct that is not specifically discussed
herein, this Court finds that Plaintiffs failed to meet their burden of proof to satisfy the elements.
Moreover, Plaintiffs’ argument that retaliation can be evidenced by the lack of reasonable standards
implemented does not show how Defendant retaliated against Plaintiffs. At most, the lack of standards
may make it easier for Defendant to retaliate; however, the standards in place are applied to every
participant and Plaintiffs did not show that they were implemented or adversely used in connection with
Plaintiffs’s protected conduct. In addition, the Court notes that the witnesses denied retaliating against
Prior to 2009, Nancy did not have any problems with services or grievances against Defendant. ECF
No. 310 at 95.
Carolina Supreme Court in an effort to prevent the 2010 caps from going into effect. This suit
was dismissed and the 2010 caps went into effect, resulting in Richard’s services being reduced
as previously scheduled. His personal care hours were reduced from 54 hours per week to 28
hours per week and his respite hours were reduced from 36 hours per week to 17 hours per week.
Thus, despite the protected activity of filing suit and the adverse action of Richard’s reduced
hours, there is no causal connection because the adverse action was simply a result of the 2010
caps going into effect, not in retaliation for Plaintiffs filing suit in the South Carolina Supreme
Court. Therefore, this claim fails on the third element.
3. Second Fair Hearing Requested for 2010
Due to the reductions, Nancy and Richard filed another appeal to the Fair Hearing
Division with Defendant (“Second Fair Hearing”). During this Second Fair Hearing request,
Richard’s hours were maintained at the original amount—54 hours and 36 hours per week—and
not reduced. ECF No. 310 at 98–99. Moreover, although Ms. Mullis testified that she felt
retaliated against for submission of her affidavit in support of Richard, the Court does not view
this action to be so related. ECF No. 316 at 170. The Court notes that Ms. Mullis submitted
affidavits multiple times in February 2009, December 2009, and May 11, 2010; however, it was
not until June 2010 that Ms. Mullis was terminated. Moreover, Ms. Mullis confirmed that she
timely appealed the termination and, thus, she was able to continue providing services for
Richard. ECF No. 310 at 59. Thus, although there was protected activity, there was either no
adverse action or causal connection.25 Accordingly, the claim for this action fails on the second
and third elements.
Due to a mistake, Richard’s providers received termination notices stating that Richard was moving
out-of-state and would no longer be eligible to receive the services. However, as soon as Nancy was
notified of the issue and the agency was contacted, the matter was corrected. During this time, Richard’s
services continued and they were never terminated. See ECF No. 310 at 99.
4. Federal Lawsuit filed in January 2012
On January 1, 2012, Plaintiffs filed suit in this Court. ECF No. 1. Despite this lawsuit,
Nancy and Richard’s plan of care was still updated on January 16, 2012, and Richard received 6
hours per week of personal care one, 55 hours per week of personal care two, and 43 hours per
week of respite. ECF No. 310 at 100–01; ECF No. ECF No. 310 at 103-20. Thus, although there
was protected activity, no adverse action occurred and Plaintiffs’ services actually increased
during the administrative appeal and during this lawsuit. Accordingly, the claim for this action
fails on the second and third elements.
5. Request for Additional Services in February 2013
On or about February 23, 2013, while this lawsuit was pending and the administrative
appeal was proceeding through the administrative law courts, the health of Nancy’s husband
began fail. Due to this unfortunate and saddening circumstance, Nancy requested additional
service hours. ECF No. 310 at 102. The request was granted, and respite hours were increased
from 43 hours per week to 240 hours per month—an approximate increase of 17 hours per week,
which was the maximum amount allowed under the 2010 caps at that time.26 Id. at 104. Thus,
despite the fact that Nancy and Richard engaged in protected activity, no adverse action
occurred. Moreover, Richard was awarded an increase of services during the administrative
appeal and this lawsuit. Id. at 108. Accordingly, the claim for this action fails on the second and
This increase was made prior to the South Carolina Court of Appeals’ order to evaluate Richard without
regard to the 2010 caps. Thus, the 2010 caps were still applicable to Richard’s case.
6. Alleged Refusal to Obey the South Carolina Court of Appeals’s Order in 2014
On September 10, 2014,27 the South Carolina Court of Appeals issued an opinion finding
that the 2010 caps were lawfully implemented; however, it also found there was evidence to
support that Richard was at risk of institutionalization and Defendant failed to establish a
fundamental alteration defense so the case was “remanded for consideration of the appropriate
services to be provided without the restrictions of the 2010 Waiver.” Stogsdill v. S.C. Dep’t of
Health & Human Servs., 763 S.E.2d 638, 645 (S.C. Ct. App. 2014). A rehearing was denied on
October 23, 2014. Id. That same month, of the 56 nursing hours that Nancy requested for
Richard, only 14 hours were awarded.
Here, protected activity occurred through the appeal and request for nursing hours.
Whether an adverse action occurred is debatable because, although all of the hours requested
were not awarded, Nancy and Richard still received additional services—nursing hours—that
they were not receiving prior to the protected activity. This Court finds that Defendant is not
compelled to award all of the services requested in order to avoid a claim of retaliation;
otherwise, waiver participants may simply file suit and then expect to receive all of their
requested services without regard to actual necessity. Due to the fact that services as a whole
were increased for Nancy and Richard during this time period, the Court finds they did not suffer
an adverse action and, moreover, there would not be a causal connection if they had suffered an
adverse action because the hours awarded were based upon Dr. Amin’s order and other records.28
Nancy testified that she felt Dr. Platt’s affidavit submitted to the South Carolina Supreme Court was
done in retaliation. The Court finds that the affidavit was submitted in conformance with 42 C.F.R. §
441.365(f), stating, when a beneficiary declines access to the home, “the review is limited solely to the
review of the provider’s records.”
Contrary to Plaintiffs’ assertion, the United States Supreme Court has stated that the “State’s treatment
professionals” are entitled to deference. Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 602–07 (1999)
(“Consistent with these provisions, the State generally may rely on the reasonable assessments of its own
professionals . . . For the reasons stated, we conclude that, under Title II of the ADA, States are required
In addition, this action was the first time since the initial protected activity occurred that Richard
and Nancy did not receive all of the services they requested. Accordingly, the claim for this
action fails on the second and third elements.
7. Filings in South Carolina Supreme Court and United States Supreme Court
Although Nancy and Richard were successful with regard to their argument that Richard
was at risk of institutionalization and the 2010 caps should not apply, they appealed the South
Carolina Court of Appeals’ decision that the 2010 caps were lawfully implemented. On April 9,
2015, the South Carolina Supreme Court granted certiorari, but dismissed the case as
improvidently granted on January 20, 2016. Stogsdill v. S.C. Dep’t of Health & Human Servs.,
781 S.E.2d 719 (S.C. 2016). On March 24, 2016, the South Carolina Supreme Court dismissed
Nancy and Richard’s petition for a rehearing. Stogsdill v. S.C. Dep’t of Health & Human Servs.,
784 S.E.2d 669 (S.C. 2016). They appealed to the United States Supreme Court, which denied
their petition for writ of certiorari and rehearing. Stogsdill v. S.C. Dep’t of Health & Human
Servs., 137 S. Ct. 278 (2016); 137 S. Ct. 540 (2016). Despite Nancy and Richard’s loss with
regard to this issue, Defendant awarded additional services to them. Thus, although Nancy and
Richard engaged in protected activity, no adverse action occurred as they were awarded
additional services, resulting in almost 24/7 coverage for Richard amongst his various services.
ECF No. 310 at 108–09. Accordingly, the claim for this action fails on the second and third
to provide community-based treatment for persons with mental disabilities when the State’s treatment
professionals determine that such placement is appropriate, the affected persons do not oppose such
treatment, and the placement can be reasonably accommodated, taking into account the resources
available to the State and the needs of others with mental disabilities.”). Moreover, the plan of care
required for a participant in the waiver plan specifically states that the attending physician may not be a
member of the review team assigned to evaluate or assess the care of the participant. See 42 C.F.R. §
8. Denial of Services
a. Denial of Nursing Services
In June 2014, Richard’s primary care physician wrote an order for 56 nursing hours per
week, and it appears Nancy submitted this request in September 2014. ECF No. 310 at 104; ECF
No. 311 at 27. In October 2014, Nancy was awarded 14 nursing hours per week for Richard’s
care. ECF No. 310 at 104. Defendant has provided numerous services to Nancy and Richard,
which amount to 24/7 care should the hours be allocated in that manner. Id. at 108–09.29 In fact,
Nancy testified that the only issue is Defendant has not awarded the 56 nursing hours per week
that were requested and only awarded 14 hours. ECF No. 310 at 109. However, the refusal to
provide the full amount of hours requested is supported by the medical records, Dr. Platt’s
assessment, and Dr. Munn’s deposition.30
As revealed during trial, Richard intermittingly suffers from undiagnosed pain, which has
caused him to be ambulated to the emergency room approximately nine times in over two and a
half years. Richard and Nancy claim that the presence of a nurse in the evening hours will allow
him to be treated with an injection of Valium and address the pain more quickly, which would
negate the need for him to be brought to the emergency room. However, the medical records
reveal that the pain appears to be undiagnosed, related to kidney stones, constipation, or gas.
Richard currently receives 6 hours per week of Personal Care I services, 148 hours per week of
Personal Care II services, 240 hours per week of Respite Care, and 14 hours per week of nursing services.
ECF No. 310 at 105–06.
Plaintiffs’s counsel raised the argument that this case is similar to Doe v. Kidd, wherein the Fourth
Circuit stated that providing a different service than what has been ordered for a plaintiff is the same as
failing to provide any service. Doe v. Kidd, 419 F. App’x 411, 417 (4th Cir. 2011). However, in Doe, the
entity itself had determined that the plaintiff was entitled to a certain type of service, yet failed to provide
it to her. This case is distinguishable because the entity did not state Richard was entitled to 56 nursing
hours—his personal doctor did. Here, the entity determined that Richard was entitled to 14 nursing hours
and 14 nursing hours were provided. Moreover, this Court wishes to clarify that Plaintiffs’ counsel often
conflates the doctor’s order as an order that Defendant must provide certain services. The doctor’s order
is to be provided for Defendant’s consideration; it is not an order that Defendant is mandated to follow
under the current law.
ECF No. 310 at 110–11; 117–18. Thus, although no one wishes anyone to endure unnecessary
pain, Dr. Platt testified that the assistance of a nurse during the additional hours was unwarranted
because he or she could not address issues such as kidney stones or gas—other than to ease the
pain—and nine emergency visits in two and a half years did not justify the additional expense of
increasing Richard’s nursing hours threefold.
As to Dr. Munn’s testimony, the Court sustains Defendant’s objection because she was
not listed as an expert witness by Plaintiffs and excludes the testimony to the extent it consists of
expert opinion testimony. See Ingram v. ABC Supply Co., No. C/A 3:08-1748-JFA, 2010 WL
233859, at *2 (D.S.C. Jan. 14, 2010) (“It is clearly within the court’s power under Rule 37(c)(1)
to exclude witnesses who are not properly identified.”) (citing In re Air Crash at Charlotte, N.C.,
982 F. Supp. 1086, 1088 (D.S.C. 1997); Charles A. Wright, Arthur R. Miller and Richard L.
Marcus, 8A Federal Practice and Procedure § 2289; Id. at § 2031.1). The Court finds that
Plaintiffs’ failure to disclose Dr. Munn as an expert was unjustified and Defendant could be
substantially prejudiced by this witness’s expert opinion.31 The Court finds that a treating
physician’s testimony about a patient’s diagnosis, prognosis, and future medical care is opinion
testimony that falls under Rule 26(a)(2)(A)’s expert disclosure requirement. See Fed. R. Evid.
702. Therefore, the Court (1) will not permit Dr. Munn to provide any expert opinion about
Richard’s diagnosis, prognosis, and future medical needs, and (2) will restrict Dr. Munn’s
testimony to her individual factual treatment of Richard, as such treatment is documented in the
Plaintiffs’s counsel recognized this possible issue at the beginning of Dr. Munn’s deposition wherein
she stated that “Dr. Munn succeeded Dr. Joseph, and it’s the same practice and Dr. Joseph has retired.”
ECF No. 336-1 at 4–5. However, despite the statement of Plaintiffs’s counsel that she would “deal with
that with the judge,” this issue was not addressed and the deposition reveals that Dr. Munn did not take
over Dr. Joseph’s practice. Id.; see ECF No. 336-1 at 7.
However, even if the Court had entertained all of Dr. Munn’s testimony and had not
sustained Defendant’s objection, the result would not change this Court’s conclusion. Dr.
Munn—Richard’s family physician—admitted during her testimony that the cause of Richard’s
pain is undiagnosed and they could only show it helped Richard when he received the injection
while he was in pain. ECF No. 336-1. Furthermore, Dr. Munn could not say with certainty that
the additional nursing hours would prevent Richard’s trips to the emergency room. See, e.g., id.
at 42:14–25. Moreover, Dr. Platt served as Dr. Munn’s preceptor—someone that a student, such
as Dr. Munn at the time, could shadow and train from—during medical school approximately
twenty years ago. ECF No. 336-1 at 38. Dr. Munn stated that she respected Dr. Platt and his
professional abilities. Id. Dr. Munn was unable to confirm whether a nurse was present when
Richard was in pain as Dr. Platt noted the nursing notes did not mention any incidents. Id. at 39–
40. Consequently, this Court finds that Nancy and Richard’s request for additional nursing
services was not denied out of retaliation for their protected activity, but it was based upon Dr.
Platt’s determination of Richard’s needs, the medical records, and the practicality of resources
available. Therefore, this Court finds there is no causal connection and this claim fails upon the
b. Alleged Denial of Assessment without Reasonable Promptness and
As to Plaintiffs’ contention that Defendant’s failure to assess, respond with reasonable
promptness, or provide sufficient notice was retaliation, Plaintiffs did not show by a
preponderance of the evidence that such failure, if any exists, was done in retaliation.
First, Richard is not entitled to an independent assessment. The Court reviewed the South
Carolina Court of Appeals’ order, which only states that the case was “remanded for
consideration of the appropriate services to be provided without the restrictions of the 2010
Waiver,” not that an independent assessment was to be done. Stogsdill v. S.C. Dep’t of Health &
Human Servs., 763 S.E.2d 638, 645 (S.C. Ct. App. 2014). Moreover, this Court reviewed the
regulation and State Medicaid Manual cited by Plaintiffs in support of their argument that
Richard is entitled to an independent assessment, which state:
An appeal on medical issues may involve a challenge to the Medical Review
Team’s decision regarding disability; or there may be disagreement about the
content of reports concerning the appellant’s physical or mental condition or the
individual’s need for medical care requiring prior authorization. When the
assessment by a medical authority, other than the one involved in the decision
under question, is requested by the claimant and considered necessary by the
hearing officer, obtain it at agency expense. The medical source should be one
satisfactory to the claimant. The assessment by such medical authority shall be
given in writing or by personal testimony as an expert witness and shall be
incorporated into the record.
ECF No. 325-4 at 10 (emphasis added).
If the hearing involves medical issues such as those concerning a diagnosis, an
examining physician’s report, or a medical review team’s decision, and if the
hearing officer considers it necessary to have a medical assessment other than
that of the individual involved in making the original decision, such a medical
assessment must be obtained at agency expense and made part of the record.
42 C.F.R. § 431.240(b) (emphasis added). During closing argument, when the Court inquired if
there was something in the record showing that the hearing officer in this case considered an
independent assessment to be necessary, Plaintiffs’ counsel conceded there was not. This Court
cannot ignore the clear language of the law stating that a hearing officer must consider an
independent assessment to be necessary before such assessment becomes a right. Thus, Nancy
and Richard are not entitled to an independent assessment and Defendant’s failure to provide it is
conforming to the law, not retaliation. Therefore, this claim fails on the second and third
Second, an evaluation is unable to be performed without the necessary information. See,
e.g., 42 C.F.R. § 441.365(f); 42 C.F.R. § 431.244(f)(4). Unfortunately, Plaintiffs did not carry
their burden and show this Court that all necessary records were provided to Defendant or proper
requests for evaluation were completed. Each response appeared to have qualifiers, such as
Plaintiffs’ counsel must be present when the participant was evaluated, a release was not
necessary because it had been provided previously, or Plaintiffs made a request but it was
through an improper channel—the attorney for Defendant—instead of the service coordinator.
Exhibits 102, 114. Moreover, Plaintiffs’ counsel appeared to represent—through her questions to
Mr. Liggett—that Richard’s complete medical records had just been provided to Defendant
during the course of this trial. ECF No. 316 at 149–50, 162–63. Furthermore, amongst the
various levels of appeals, the Code of Federal Regulations states that an agency must take a final
administrative action “[o]rdinarily, within 90 days”; however, it provides an exception for when
an “appellant . . . fails to take a required action.” 42 C.F.R. § 431.244(f)(1), (4). Finally,
Plaintiffs’s counsel consistently clarified that they were seeking an independent assessment,
which they were not entitled to. See, e.g., ECF No. 316 at 98, 100, 148, 156, 161. Thus,
although periods of time appeared to lapse before assessments or decisions were made, this
Court does not find it was done in retaliation to Plaintiffs but rather filled with
miscommunication, missing records, and overcomplicated actions.
Third, although Nancy and Richard claim the allegedly insufficient notices constituted
retaliation, she specifically testified that “[a] lot of people have complained for the same reason
[Nancy and Richard were] complaining” with regard to the waiver program, billing, or notices.
ECF No. 310 at 112. The fact that these alleged issues have been consistently applicable to
others in the program may show that an improved administration is needed, but it does not show
retaliation against Nancy and Richard for their protected activity. Furthermore, Nancy
acknowledged during her testimony that if she was dissatisfied with her provider then she could
select a different one. Moreover, Nancy testified that she did not believe any of the service
coordinators currently assigned to Richard had retaliated against her or Richard. ECF No. 310 at
115–16. Thus, whether or not there was adverse action, there is no causal connection between the
alleged denials of assessment, delays, or insufficient notices and Plaintiffs’s protected activity.
Therefore, this claim fails, at least, on the third element.
B. Plaintiffs Robert Levin and Mary Self
As to Plaintiffs Robert and Mary, the following testimony was received.
1. Lawsuit Regarding Upcoming 2010 Caps filed on December 31, 2009
Although Mary testified that she did not receive an official notice regarding the 2010
caps, she acknowledged that she became aware of them prior to their implementation and that
they would cause services to be reduced in January 2010. ECF No. 316 at 5, 44. In an effort to
prevent these caps from going into effect, Mary participated in the same suit as Nancy when she
filed an original jurisdiction action in the South Carolina Supreme Court. Id. As stated above,
the South Carolina Supreme Court dismissed the action and the caps went into effect in 2010.
The implementation of the caps reduced Robert’s attendant care services by 7 hours a week—
resulting in a decrease from 56 hours per week to 49 hours per week. Mary and Robert did not
appeal that reduction, or challenge it, and no additional requests for services were made until
October 2014.32 Thus, despite the fact that Mary and Robert were engaged in protected
activity—the original jurisdiction lawsuit in the South Carolina Supreme Court—and adverse
action occurred—a 7-hour reduction in services—there is no causal connection as the reduction
was due to the 2010 caps that went into effect and it applied to all relevant participants.
Therefore, this claim fails on the third element.
Moreover, there were no additional changes to the services.
2. Federal Lawsuit filed in January 2012
On January 1, 2012, Mary and Robert filed suit with Nancy and Richard in this Court. In
this lawsuit, Mary and Robert raised many claims—as previously discussed in this Court’s prior
orders—including the risk of institutionalization from reduction of service hours due to the 2010
caps. Mary and Robert did not request additional services until October 2014. During this two
year period, there were no modifications or terminations of Mary and Robert’s services, which
consistently remained at 49 hours per week. Thus, during this two year period, no adverse action
was taken despite Mary and Robert’s protected activity of filing this federal lawsuit. Therefore,
from January 2012 to October 2014, this claim fails on the second and third elements.
3. Request for Additional Services in October 2014
In October 2014, Mary contacted the service coordinator assigned to Levin—Carmen
Hay—and inquired about nursing services. ECF No. 238 at 43. Apparently, an order was written
by Dr. Shissias in June 2014 (Exhibit 120) for nursing services “up to 60 hours” per week, but
the order did not appear to be provided to Coordinator Hay until October 2014. Id. at 44.
Coordinator Hay previously testified that she informed Mary the nursing and attendant care
services, when combined, could not exceed 70 hours—which was in accordance with the 2010
caps. Id. at 43. Thus, because Robert was receiving 49 attendant care hours, the maximum
nursing hours that could be awarded were 21 hours. At the time of the trial in February 2015,
Coordinator Hay testified that Mary had not returned the required release for the evaluation.
Mary confirmed this fact during her testimony on April 28, 2015. Id. at 44–45; ECF No. 218 at
159–60 and 163–64. Thus, failure to grant the requested services in October 2014 for an
extended period of time did not constitute an adverse action as Defendant did not have the
necessary forms to assess the request. Therefore, this claim fails on the second and third
4. Request for Additional Services in April 2015
In March 2015, after this Court issued its order stating that Robert had failed to prove he
was at risk of institutionalization due to the decreased hours, Mary signed the requested release
in April 2015 and made a second request for nursing services. ECF No. 316 at 47. By the end of
June 2015, Robert was awarded the maximum amount of nursing services allowed—21 hours per
week—in combination with the attendant care he was already receiving. Id. at 47–48. Because
this Court ruled that Robert had not met his burden of proof to show he was at risk of
institutionalization without more hours, Defendant rationally did not approve services in excess
of the caps—without risk of institutionalization, Robert’s services were subject to the caps.33
Thus, although there was protected activity through Mary and Robert’s request and perhaps
adverse action insomuch as the amount he requested was not provided, there was no causal
connection reflecting the action was taken in retaliation. Therefore, this claim fails on at least the
5. Request for Additional Services in October 2016
In October 2016, an additional request for nursing services was submitted to Robert’s
service coordinator. In addition, the medical records required to evaluate the request were not
received by the service coordinator until December 2016. Unfortunately, Robert aspirated due to
vomiting and was rushed to the hospital on December 31, 2016. Pursuant to 42 C.F.R. §
441.301(b)(1)(ii), services may not be furnished to beneficiaries who are inpatients of a hospital.
Because Robert became an inpatient of the hospital, his waiver services were suspended and his
Thus, although the most recent medical records were not included in the package, it appears to be an
inadvertent error and did not cause harm to Robert as he was not eligible for additional services above the
caps at that time and his doctor deemed it appropriate to continue with his plan of care.
request for additional services could not be considered.34 Robert and Mary’s request for
reconsideration was denied, as Dr. Buscemi explained in her testimony, because Robert was an
inpatient of the hospital. ECF No. 311 at 41–114. Moreover, as stated in Dr. Buscemi’s letter to
Robert and Mary, the services were terminated due to his hospitalization, and the letter set forth
the regulation and his appeal rights. ECF No. 286-6. Thus, there was protected activity in the
second request for additional nursing hours and there was adverse action because his services
were suspended; however, the suspension of services and failure to consider his request for
additional services were not connected to the protected activity and was a result of Robert’s
inpatient hospitalization as mandated by the Code of Federal Regulations. Therefore, this claim
fails on the third element.
Defendant pointed out that Mary previously requested additional supplies or revisions to
equipment—such as hand splints, a wheelchair and its repairs, a computer replacement for
Robert’s mattress—which were approved without incident. ECF No. 237 at 126–28. These
provisions further support there was no retaliation against Mary and Robert for their protected
Separately, this Court notes that Defendant provided a declaration by Dr. Platt and stated
it would be willing to increase Robert’s hours to 84 nursing hours per week—the maximum ever
alleged to be requested by Mary and Robert—and 42 attendant care hours per week upon
Robert’s release from the hospital. ECF Nos. 329-1, 329-2. This decision was made in light of
the depositions and information recently provided because Mary has testified that she cannot
accept Robert back home without additional services. Id. Regrettably, Plaintiffs’s counsel has
represented that these hours would not be enough and she expected 24-hour care to be awarded
Moreover, Plaintiffs’ counsel represented that she has been insisting upon an independent assessment,
which has not been shown to be ordered by the hearing officer as required before it becomes a right under
the law cited by Plaintiffs as discussed supra. ECF No. 318 at 85.
instead, despite the concession of Robert’s doctors that they would defer to Dr. Platt’s
determination. ECF No. 330-1 at 46; ECF No. 330-2 at 32. This Court mentions this submission
as it appears Defendant is attempting to assist Mary and Robert in their quest, not retaliate
6. Request for a Speech Device
In 2014, Dr. Shissias ordered a speech evaluation to be conducted to see if Robert would
qualify for a speech device. In 2015, a speech evaluation was performed by a third-party, who
found that Robert was able to use an iPad and recommended that Robert be further evaluated to
see if he would qualify for an eye gaze device as well as a swallow study to address swallowing
issues. Robert and Mary contend that an order for the speech device has been disregarded;
however, Defendant contends that there is no order stating Robert is entitled to a speech device
and it appears that no one has followed up on the eye gaze evaluation. Moreover, Defendant
contends that these issues are now provided through the state’s plan—not the waiver program.
Mary and Robert did not direct this Court to evidence showing the contrary. Thus, there does not
appear to be adverse action taken against this protected activity and, furthermore, Robert and
Mary have not carried their burden to show a causal connection for retaliation as to this claim.
Thus, it fails on the second and third elements.
7. Workers’ Compensation Claim
In 2011, one of Robert’s caregivers—Angela—was injured on the job and she filed a
workers’ compensation claim against Defendant and Mary. Robert and Mary contend that
Defendant retaliated against them by allowing the progression of the workers’ compensation
claim. However, the record reflects Mary had no evidence that Coordinator Hay added Mary as a
party to the claim nor did Coordinator Hay indicate that Mary was responsible. Moreover, Mary
testified Angela’s response to the notice that she would be fired was “that [is] okay because she
[is] going to sue them [i.e. Defendant] and sue me [i.e. Mary], too.” ECF No. 311 at 146. Finally,
the Court notes that the decision of the workers’ compensation claim states that Angela—the
injured caretaker—originally filed the claim against DDSN; however, the claimant re-filed her
action naming “all the present parties.” ECF No. 61-4 at 5. Thus, this Court does not find that
Defendant instigated the suit against Mary nor was their defense done in retaliation. Therefore,
this claim fails on all of the elements.
Therefore, based upon the evidence and testimony received at trial, submitted
depositions, and a complete review of the record, this Court finds that Plaintiffs have failed to
show by a preponderance of the evidence that Defendant retaliated against them in violation of
the American with Disabilities Act and finds in favor of Defendant.35
IT IS SO ORDERED.
July 25, 2017
Columbia, South Carolina
United States District Judge
This order, in conjunction with all previously issued orders in this case, is calculated to conclude all the
claims before this Court as the Court has attempted to adjudicate all pleaded claims raised by Plaintiffs.
See Martin v. Duffy, 858 F.3d 239, 246–47 (4th Cir. 2017). As to any claims not specifically addressed, if
any, this Court finds Plaintiffs have failed to meet their burden of proof. Moreover, the Clerk of Court is
directed to enter a judgment reflecting an intent to dispose of all issues. Id.
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