United States District Court, D. South Carolina, Columbia Division
Richard Stogsdill, Nancy Stogsdill, Mother of Richard Stogsdill, Robert Levin, and Mary Self, Mother of Robert Levin, Plaintiffs,
South Carolina Department of Health and Human Services, Defendant.
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”). 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
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.
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.
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.
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
FINDINGS OF FACT
upon the testimony adduced at the bench trial held on March
30, 2017, March 31, 2017, May 8, 2017, and May 12, 2017,
Court makes the following findings of fact.
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.
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.
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
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
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.
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.
Nancy testified that she had not filed a grievance against
SCDDSN until February 13, 2009,  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
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.” 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.
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.
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
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.
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.
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.
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.
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
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.Moreover, Nancy's request for
additional attendant care hours was not granted until October
2016. Id. at 52.
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.
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
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. 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. 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.
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:
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
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.
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.
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
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,
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.
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.
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
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.
Mary testified regarding Robert's hospitalization on
December 31, 2016. ECF No. 316 at 52-53.
presented fourteen witnesses, including the parties, to
testify on the issue of retaliation.
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. 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. 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. Finally, Ms. Lewis was
uncertain whether Defendant had an anti-retaliation policy in
place. ECF No. 310 at 136.
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.
Dr. Beverly Buscemi
Beverly Buscemi has been the “state director for
[SCDDSN]” since November 2009. 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
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.
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
Buscemi explained that a letter was sent to families
notifying them of the reduction in services due to a change
in the waiver.
Catherine D. Shealy
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, ...