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Stogsdill v. South Carolina Department of Health And Human Services

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

July 25, 2017

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

          ORDER

         I. INTRODUCTION

         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).

         II. 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 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, and 336-1.[2]

         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 Law, they are adopted as such, and to the extent any Conclusions of Law constitute Findings of Fact, they are so adopted.

         III. 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 Stogsdill[[5]]

         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 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 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 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. 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 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 re-introduced during this trial. The Court adopts its Findings of Facts in its previous order (ECF No. 184) as stated herein:

         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 quadriplegic.

         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 waiver program.

         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 retaliation.

         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 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.

         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 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, ...


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