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Levin v. South Carolina Department of Health and Human Services

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

July 28, 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 numerous causes of action; however, as a result of dispositive motions and the first bench trial, Plaintiffs' only remaining cause of action is for violation of 42 U.S.C. § 1983 against the South Carolina Department of Health and Human Services ("SDHHS").[1] (ECF No. 72).

After the first bench trial, the Court requested briefing on the § 1983 claim, and by order dated April 20, 2015, the Court granted partial summary judgment to SCDHHS on Plaintiffs' § 1983 claim for the alleged violations of 42 U.S.C. § 1396a(a)(3) (Fair Hearing Provision), 42 U.S.C. § 1396a(a)(8) (Reasonable Promptness Provision), and 42 U.S.C. § 1396a(a)(10) (Amount, Duration, and Scope) (ECF No. 193). The remaining § 1983 alleged violations were heard via a second bench trial held on February 27, 2015, February 28, 2015, and March 5, 2015. In light of the complexity of the issues involved in this case and the judicial resources already expended hearing summary judgment arguments, conducting a prior bench trial, and preparing two detailed, lengthy orders on those claims, at the close of evidence the Court requested the parties submit a "Statement of Facts Proven" with citations to the record for the Court's consideration in preparation of this order.[2] (ECF No. 207).

At the conclusion of the second bench trial, the Court initially indicated that it would read the parties' briefs and possibly conduct another hearing for counsel to present closing arguments. However, the Court finds that closing arguments would not aid in its decision-making process.

Therefore, after careful examination of the parties' submissions and the substantial record in this case, this written order serves as the Court's ruling on Plaintiffs' remaining claims under 42 U.S.C. § 1983. Further, in accordance with Rule 52(a)(1) of the Federal Rules of Civil Procedure, this order details the Court's findings of facts and conclusions of law on the evidence presented during the second bench trial.[3]


Based upon the testimony adduced at the second bench trial held on February 27, 2015, February 28, 2015, and March 5, 2015, the Court makes the following findings of fact.[4]

A. Witness Testimony [5]

1. Plaintiffs presented seven live witness to testify before the Court on the remaining claims under 42 U.S.C. § 1983: George Maky, Thomas Waring, Beverly Buscemi, Lennie Mullis, Jarrett Crandall, Mary Self, and Deborah McPhearson.
2. George Maky is the Division Director of Community Options at SCDHHS. In his position, Maky works with SCDDSN in the administration of the waiver program; however, SCDHHS is responsible for the overall administration of the waiver program and has final say on all issues. Maky explained that in 2010 when the waiver caps were instituted, the nursing services criteria did not change, only the number of hours covered by the waiver changed. Despite the cap of hours, individuals were allowed to receive additional hours for other services to compensate for the reduction. Due to the purpose and structure of the waiver program, in order to receive benefits, individuals in the program cannot also be in an institutional setting. Even though hours have been limited since imposition of the waiver caps, Maky is not aware of any participant being forced to go into an institutional setting as a result of the changes to services. The waiver program uses a targeted case management system in which a service coordinator develops a plan for an individual and identifies the needs and services to meet the needs. It is the job of the service coordinator to inform waiver participants of the feasible alternatives under the waiver. Based on the assessed needs of the participant, the service coordinator is required to provide information on the services available under the waiver to meet those needs. Maky stated service coordinators are also required to monitor waiver services.
3. Thomas Waring is the Associate State Director at SCDDSN and oversees the accounting, purchasing, engineering and information technology divisions of the agency. Waring was the agency budget director in 2010 at the time the waiver caps were put in place. Overall, most of the services provide under the waiver are provided in the community. Since implementation of the waiver caps, the Department no longer has nursing outliers, which were allowed for based on a physician's order and permitted additional funding for services to cover care needs.
4. Beverly Buscemi began working for SCDDSN in February of 2008 as the facility administrator at Midlands Center, one of the regional centers operated by DDSN. In November of 2009 she assumed the position of state director. In general, in order to qualify for services under the waiver program, an individual has to meet institutional or nursing home level of care. Under the HASCI 2010 waiver caps participants are allowed a maximum of 60 hours per week of LPN care or 45 hours per week of RN care. Buscemi is not aware of any person who has been institutionalized as a result of the reduction in services under the waiver caps. No formal study has been conducted to determine whether the caps in services have resulted in participants being institutionalized. However, she stated the Department does close financial tracking, quarterly financial reports, and end of year reports. Through those reports SCDDSN would be able to ascertain the difference between money spent before the caps were put in place and after the caps went into effect. Buscemi explained the Centers for Medicare and Medicaid Services ("CMS") does not allow duplication of services between the state Medicaid plan and the waiver program, so CMS instructed the state of South Carolina to remove physical therapy, occupational therapy, and speech therapy from the list of services provided under the waiver.
5. Lennie Mullis is a psychological consultant who provides counseling and behavior support as part of the waiver program to participants; however, she does not provide any services to Levin. Mullis indicated two of the individuals she provided services to were forced to go into placement due to services being cut as a result of waiver caps. Neither of these individuals were HASCI waiver participants. In her experience dealing with participants, if a family needs a service, it is requested, and the service is not available, the family is not informed of a possible alternative.
6. Mary Self is Levin's mother and provides care to her son at home. After Levin had been living at a nursing home for several years and Self elected to move Levin from an institutional setting into her home, the HASCI waiver administrators informed her of the services that were available. Self does not feel it is her responsibility as the parent to tell the service coordinator what the feasible alternatives are under the waiver.
7. Deborah McPherson[6] is a former employee of SCDDSN and SCDHHS. She also served as a commissioner on a local DSN board. McPherson believes the goal of the waiver program is to serve an individual in the community in order to avoid costly institutional care. Under the wavier, an individual must meet the level of care for institutional care, and then services are provided in the community at equal or less cost than providing those same services in an institutional setting.
8. Plaintiffs also presented the deposition testimony of several witnesses: Marion Burton, Peter Ligett, Kara Lewis, Elizabeth Hutto, and Anthony Keck.[7]
9. Peter Ligett is the Deputy Director for Long Term Care and Behavioral Health at SCDHHS. He has held that position since March 2013 and helps to oversee the waiver programs provided by SCDHHS. According to Ligett, the case manager for each participant works to make arrangements to obtain the care needed, as long as medical necessity has been established. The case managers provide linkage and care coordination for people who need services that might not be provided by a primary provider. Case managers can identify the needs of a particular participant and get the required services. Ligett indicated it is expected that service coordinators have experience and knowledge regarding the services available under the waiver.
10. Kara Lewis is employed with SCDHHS and worked as a liaison for the DDSN waivers. The HASCI waiver is a home community based program that is designed to support individuals that live in the community and serves participants jointly through SCDHHS and SCDDSN. Within the HASCI waiver program the service coordinator is responsible for assisting recipients with assessing whether or not a need is proper and legitimate.
11. Elizabeth Hutto is an attorney for SCDHHS and serves as the Deputy Director of the Department. The targeted case manager/service coordinator is the person in charge of getting services for a waiver participant. The case manager guides the ...

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