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Levin v. South Carolina Department of Health and Human Services

United States District Court, D. South Carolina, Columbia Division

March 16, 2015

Robert Levin, and Mary Self, Mother of Robert Levin, Plaintiffs,
South Carolina Department of Health and Human Services, Defendant.


JOSEPH F. ANDERSON, Jr., District Judge.


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 violations of the Americans with Disabilities Act, violations of Section 504 of the Rehabilitation Act, and violations of 42 U.S.C. §§ 1983 and 1985 (Civil Rights) against the South Carolina Department of Health and Human Services ("SDHHS").[1] (ECF No. 72).

Plaintiffs initially demanded a jury trial for their claims; however, upon motion of SCDHHS, the Court struck the jury demand because Plaintiffs' requested relief is equitable in nature. (ECF No. 147). Pursuant to a pretrial conference conducted with the parties on February 18, 2015, the Court elected to bifurcate the trial of this matter, splitting the case into two phases. As set forth in detail in the Court's Pretrial Order, Phase I of the trial would only focus on the threshold issue of whether Levin is at significant risk of institutionalization. (ECF No. 171). 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. (Id.).

In accordance with the Pretrial Order, the Court held a bench trial on Phase I on Tuesday, February 24, 2015, and Wednesday, February 25, 2015. At the close of evidence, Defendant made three motions: (1) Motion to Amend Answer to Assert Affirmative Defense of Statute of Limitations, (2) Motion to Strike, and (3) Motion for Judgment as a Matter of Law. The Court heard oral argument on these motions and took them all under advisement. This written order sets forth the Court's rulings on those pending motions. Further, in accordance with Rule 52(a)(1) of the Federal Rules of Civil Procedure, this order is also being issued to detail the Court's findings of facts and conclusions of law on the evidence presented in Phase I.


A. Medicaid Waiver Program

Medicaid is a joint federal and state program enacted to provide medical care to needy individuals. While the costs of the program are allocated between the federal and state governments, the federal government provides more funds for operation of the program. Pursuant to Medicaid regulations, states may obtain a waiver of certain statutorily-defined Medicaid requirements in order to offer "an array of home and community-based services that an individual needs to avoid institutionalization." 42 C.F.R. § 441.300. In South Carolina, SCDHHS is the single agency that administers Medicaid. SCDHHS contracts with the South Carolina Department of Disabilities and Special Needs to administer the day-to-day operations of the waiver programs.

On January 1, 2010, the five (5) year renewal of the waivers, as approved by the Centers for Medicare and Medicaid Services went into effect. The renewed waivers included a cap or limit on some services and completely excluded others. These limits and exclusions form the basis of Plaintiffs' lawsuit.


Based upon the testimony adduced at the bench trial held on February 24, 2015, and February 25, 2015, the Court makes the following findings of fact.

A. Robert Levin

1. Levin is a Medicaid-eligible disabled adult who has been receiving services under the HASCI waiver program. In 2001, Levin 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. Levin 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 Levin a wheelchair-bound quadriplegic.
2. For the first four years after Levin'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, Self elected to remove Levin from the facility and provide care for him at home. Prior to the 2010 waiver caps, Levin received 56 hours of Attendant Care/Personal Services per week. However, effective January 1, 2010, Levin's Attendant Care/Personal Services were reduced to 49 hours per week. In addition to these services, Levin 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 waiver program.
3. Levin's daily ritual of care is lengthy and time consuming. Levin 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 Levin'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 Levin maintain a more normal posture.

B. Witness Testimony

4. Plaintiffs presented three witnesses to testify on the issue before the Court in Phase I: Charles G. Shissias, M.D., Jarrett Crandall, and Self. Plaintiffs' first witness was Dr. Shissias, a neurologist with the Beaufort Memorial Lowcountry Medical Group in Beaufort, South Carolina. Dr. Shissias has been treating Levin for the past ten years and renders care to Levin exclusively for the spasticity issues in his limbs. Dr. Shissias sees Levin approximately every ninety days, but he is not Levin's general primary physician. Under Dr. Shissias' care, Levin is prescribed medication to alleviate pain and to improve the elasticity of his limbs, and Dr. Shissias also gives Levin Botox injections to calm his overactive limbs that spontaneously move. Dr. Shissias testified at length about Levin's daily needs, which are provided by Self and his other caretakers. This daily routine was described as a ritual of care.[2] He pointed out that the excellent care provided to Levin by Self is evident in Levin's overall appearance and lack of any major complications or problems. Dr. Shissias also spent significant time discussing the lack of adequate comparable care that could be provided to Levin if he was institutionalized. Specifically, Dr. Shissias indicated that Levin would most likely "fall through the cracks" in such a facility, given the ratio of patients to caregivers in such a setting. Further, he testified that Levin would also be at an increased risk of developing decubitus ulcers because he spends a great deal of time seated in a wheelchair.
5. In terms of Levin's attendant care service provided through HASCI, Dr. Shissias was not aware of how many hours Levin was entitled to per week. He indicated that it was his recommendation that Levin receive 60 hours of attendant care per week, but he could not remember when he signed an order requesting that level of care. Dr. Shissias was also not familiar with the services SCDHHS currently provides to Levin or that any of his services had been reduced.
6. Plaintiffs' also called Jarod Crandell, Levin's attendant nurse, as a witness. Mr. Crandell is employed by Care Pro Home Health Services, and he spends a significant amount of time caring for Levin on an almost daily basis. Mr. Crandell expounded on the many tasks he performs for Levin, including changing, bathing, dressing, and exercising. He spoke in great detail about Levin's ritual of care. Mr. Crandell testified that in his opinion Levin would most likely not fare well in a nursing home-type facility due to his many limitations and inability to control his movements, which might present a danger to others.
7. Plaintiffs' last witness was Self, Levin's mother. Self described the tragic accident that rendered Levin a quadriplegic. She also explained the extent of Levin's injuries, the initial surgeries he underwent right after his accident, and the difficulty she had finding a South Carolina nursing home that would initially care for Levin. Self also explained Levin's daily ritual of care and the toll his condition and continuous need for care has taken on her. Self testified that she requested SCDHHS provide additional nursing hours for Levin in 2014, as written in Dr. Shissias' physician order. However, Self admitted that she had not complied with all the requirements set forth by SCDHHS in order to receive the extra nursing hours. When SCDHHS provided Self with medical releases, she refused to sign the releases, stating that she wanted to speak with her attorney first. As of the date of the bench trial, Self testified she still had not executed the medical releases as requested by SCDHHS.
8. SCDHHS called two witnesses during Phase I of trial. SCDHHS' first witness was Linda Veldeer, head of the HSACI waiver program. Ms. Veldeer explained that the process for review of any requested services under the program. Significantly, she indicated that a review of any request for services cannot be performed unless and until all proper forms are received by the department. Upon receipt of all necessary documentation, a nurse reviews the request for services and makes a recommendation to Ms. Veldeer as head of the program. This would be the process utilized for any request for services made by Self on Levin's behalf. Ms. Veldeer did not have an opinion regarding whether Levin is at risk of institutionalization; however, she testified that every person in the waiver program is at some risk of institutionalization by virtue of the fact that they need institutional-level care, but have elected to receive those services at home rather than in an institutional setting. In this regard, the entire waiver program is an alternative program because it affords participants an alternative to institutionalization.
9. Carmen Hay, Levin's caseworker, also testified on behalf of SCDHHS. Ms. Hay meets with Levin and Self twice a year to review the adequacy of Levin's of plan of care. Based on Ms. Hay's observations, Levin's caretakers are attentive; Levin is well groomed and does not ever appear to be in pain or distress when Ms. Hay visits. Prior to 2010, Levin received 8 hours of nursing care per day, totaling 56 hours per week. Beginning in 2010, Levin's nursing hours were reduced to 7 hours per day, totaling 49 hours per week. Based on Ms. Hay's records, the first time Self requested additional nursing hours for Levin was on October 23, 2014. Ms. Hay explained that in order to approve such a request, SCDHHS would have to obtain the participant's medical records, as well as the doctor's order for the additional hours. However, the doctors' offices will not produce a participant's medical records without an executed release, so SCDHHS is required to obtain signed releases from the responsible caretaker. To date, Self has not provided SCDHHS with the necessary releases required to procure Levin's medical records. Ms. Hay does not believe that Levin is at a serious risk of institutionalization, and to her knowledge Self has never expressed concern that Levin would be at serious risk if he did not receive additional services.

C. Plaintiffs' Claims

10. There are three remaining causes of action currently before the Court: (1) Third Cause of Action for violation of the Americans with Disabilities Act ("ADA"), (2) Fourth Cause of Action for violation of § 504 of the Rehabilitation Act, and (3) Sixth Cause of Action for violation of 42 U.S.C. §§ 1983 and 1988. However, based on stipulation of the parties, only Plaintiffs' claims under the ADA and § 504 of the Rehabilitation Act were before the Court during the bench trial.
11. Plaintiffs' third cause of action for violation of the ADA alleges that SCDHHS failed to make reasonable modifications to the home and community-based waiver programs to allow Levin to stay in his integrated home-based setting, which constitutes unlawful discrimination. Similarly, Plaintiffs' fourth cause of action for violation of § 504 of the Rehabilitation Act alleges that SCDHHS has failed to make reasonable modifications to home and community-based waiver programs to allow Levin to utilize waiver services so he can successfully maintain his placement in the least restrictive setting appropriate to his needs, which constitutes unlawful segregation.


In order to determine what evidence and issues are properly before the Court, it is necessary to first address the Motion to Amend the Pleadings and Motion to ...

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