United States District Court, D. South Carolina, Columbia Division
ORDER AND OPINION
MARGARET B. SEYMOUR SENIOR UNITED STATES DISTRICT JUDGE.
Kobe and Mark filed a complaint on May 11, 2011, and an
amended complaint on October 18, 2011. Plaintiffs alleged the
following causes of action: Violation of the Americans With
Disabilities Act (Count One); Violation of Section 504 of the
Rehabilitation Act (Count Two); violation of 42 U.S.C. §
1983 (Count Three); Violation of 42 U.S.C. §§ 1983
and 1988 (violation of civil rights) (Count Four); Violation
of 42 U.S.C. § 1985(3) (conspiracy) (Count Five);
Violation of the Supremacy Clause (Count Six); and Violation
of RICO (Count Seven). The case originally was assigned to the
Honorable J. Michelle Childs. It was reassigned to the
Honorable Timothy M. Cain on October 18, 2011.
August 10, 2012, the Honorable Timothy M. Cain dismissed
Defendants Nikki Haley, in her official capacity as Governor
and Chairman of the South Carolina Budget and Control
Board; Curtis Loftis and Brian White, as members
of the South Carolina Budget and Control Board; and Daniel
Cooper and Converse Chellis, in their capacities as former
members of the South Carolina Budget and Control Board, on
the grounds of Eleventh Amendment immunity as to claims
asserted against them in their official capacities. He
determined none of them had a special connection to the
administration of the state's Medicaid program such than
an injunction against them would provide any redress. Judge
Cain also found that, to the extent Defendants Cooper and
Chellis were sued in their individual capacities, these
Defendants had no authority to provide prospective injunctive
relief. Judge Cain also determined that Defendants Cooper and
Chellis were entitled to legislative immunity. ECF No. 135.
On August 12, 2013, Judge Cain dismissed Defendants Hugh
Leatherman and Richard Eckstrom, in their capacities as
members of the South Carolina Budget and Control Board, on
the grounds of Eleventh Amendment immunity and legislative
immunity. ECF No. 217.
7, 2014, the within action was reassigned to the undersigned.
Remaining in the case were Plaintiffs Kobe and Mark, as well
as Defendants Anthony Keck, in his capacity as the Director
of the South Carolina Department of Health and Human
Services; Emma Forkner, in her capacity as the former
Director of the South Carolina Department of Health and Human
Services; Beverly Buscemi, in her capacity as Director of the
South Carolina Department of Disabilities and Special Needs;
Eugene A. Laurent, former Interim Director of the South
Carolina Department of Disabilities and Special Needs;
Stanley Butkus, former Director of the South Carolina
Department of Disabilities and Special Needs; Richard
Huntress, in his capacity as Commissioner of the South
Carolina Department of Disabilities and Special Needs; Kathi
Lacy, Thomas P. Waring and Jacob Chorey, in their capacities
as employees of the South Carolina Department of Disabilities
and Special Needs; Mary Leitner, in her capacity as the
Director of the Richland Lexington Disabilities and Special
Needs Board; the Babcock Center; Judy Johnson, in her
capacity as the Director of the Babcock Center; and other
Unnamed Actors Associated with the Babcock
AND PROCEDURAL HISTORY
time of filing the amended complaint, Kobe was 29 years old.
Kobe is unable to walk or to speak and has a history of
convulsions. Kobe attends the Hope Bridge Adult Day Care
program and receives Adult Day Health Care (ADHC) services.
In December 2010, the Richland-Lexington Disabilities and
Special Needs Board was directed by the South Carolina
Department of Disabilities and Special Needs (DDSN) to update
eligibility of persons using ADHC services. Kobe was informed
by the Richland-Lexington Disabilities and Special Needs
Board that he no longer was eligible for ADHC services. Kobe
appealed the termination of services to DDSN, and Defendant
Beverly Buscemi, Director of DDSN, determined on May 11,
2011, that Kobe should continue to receive ADHC services.
Despite being successful at the DDSN level, Kobe appealed the
termination of services to the South Carolina Department of
Health and Human Services (DHHS). The issue was resolved by
consent order dated August 9, 2012. There was no lapse in
ADHC services for Kobe during this time.
also alleged that he requested from DHHS an augmentative
communications device (ACD) to aid him in communicating. He
received an ACD that was not as sophisticated as that
prescribed by his treating physician. Kobe further contended
that his wheelchair was damaged when he was dropped by
employees of the Babcock Center while being loaded into a
vehicle, and that the wheelchair was not replaced promptly by
also receives ADHC services. Like Kobe, Mark was notified in
2011 that he no longer was eligible for ADHC services. Mark
appealed the termination to DDSN, which upheld the
termination. However, the issue also was resolved in
Mark's favor at the DHHS level by consent order.
Mark's ADHC services did not lapse during this time
lives with his sister. Mark contended that in 2010 DDSN
reduced the number of respite hours to which he is entitled.
Mark asserted that he is at risk of institutionalization if
his sister is not provided with the support and services that
matter came before the court on motions for summary judgment
filed by Defendants on January 6, 2014. Plaintiffs also filed
a motion for summary judgment on January 6, 2014, which was
amended on January 22, 2014. The court held a hearing on
September 23, 2014. Plaintiffs contended that the court
should resolve the following issues:
(1) Have the Defendants violated the reasonable standards
provision of 42 U.S.C. § 1396a(a)(17) of the Medicaid
Act and the South Carolina Administrative Procedures Act by
failing to establish and utilize reasonable, ascertainable,
non-arbitrary standards and procedures to determine
eligibility for and the extent of medical assistance provided
stated that the court should “issue a permanent
injunction against Defendants denying medical services
ordered by Plaintiffs' treating physicians based on
binding norms that have not been promulgated as regulations.
Plaintiffs requested that Defendants be required to give the
deference ordered by the United States Supreme Court to the
orders of Plaintiffs' treating physicians. Plaintiffs
request that Defendants be prohibited from denying medically
necessary services based on amendments made by the agencies
without promulgation of regulations.”
(2) Have the Defendants violated the “reasonable
promptness” requirement of the Medicaid Act by failing
to provide Kobe with the wheelchair and speech device his
physician ordered and by failing to provide residential
services in the least restrictive setting within ninety days
of those needs being identified?
stated that Kobe's physicians have ordered a wheelchair
and speech device, but DHHS has failed to provide this
equipment with reasonable promptness. Plaintiffs requested
the court order Defendants to immediately provide Kobe with
(1) a wheelchair to be provided within thirty days without
further administrative delays, and (2) a speech device
ordered by his physician within thirty days and speech
services determined by his physician to be medically
necessary, based on the evaluation by his licensed speech and
(3) Have the Defendants violated the integration mandate of
the Americans with Disabilities Act by failing to provide
Kobe with a wheelchair, a speech device, speech therapy
services and placement in a supervised apartment with
necessary support services?
stated: “Kobe requests that this Court issue a
declaratory order finding that Defendants have violated the
ADA in the operation of their programs and enjoining them
from continuing to violate the ADA. He requests that DHHS be
ordered to pay for the wheelchair and speech device ordered
by his physician to be funded by Defendants. He requests
continued speech services to improve his ability to
court issued an order and opinion on September 30, 2014,
concluding as follows:
It is well settled that federal courts have no authority to
“‘give opinions upon moot questions or abstract
propositions, or to declare principles or rules of law which
cannot affect the matter in issue in the case before
it.'” Int'l Coal. for Religious Freedom v.
Maryland, 3 Fed.Appx. 46, 48-49 (4th Cir.
2001) (quoting Church of Scientology of Cal. v. United
States, 506 U.S. 9, 12 (1992)). This is so even though
such case presented a justiciable controversy at an earlier
point in time and an intervening event rendered the
controversy moot. Id. (citing Calderon v.
Moore, 518 U.S. 149, 150 (1996)).
In this case, Plaintiffs were informed in 2010 that they no
longer qualified for ADHC assistance. However, their ADHC
services were never interrupted, and they both prevailed
during the administrative appeals process. Further, it
appears that Kobe has received a new wheelchair. The court
finds these claims to be moot.
The ripeness doctrine aims to “‘prevent the
courts, through avoidance of premature adjudication, from
entangling themselves in abstract disagreements over
administrative policies.'” Pasby v. Delia,
709 F.3d 307, 317 (4th Cir. 2013) (quoting
Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967),
abrogated on other grounds by Califano v. Sanders,
430 U.S. 99 (1977)). A claim should be dismissed as unripe if
the plaintiff has not yet suffered injury and any future
impact “‘remains wholly speculative.'”
Doe v. Virginia Dep't of State Police, 713 F.3d
745, 758 (4th Cir. 2013) (quoting Gasner v.
Bd. of Supervisors, 103 F.3d 351, 361 (4th Cir. 1996)).
In determining ripeness, a court must “‘balance
the fitness of the issues for judicial decision with the
hardship to the parties of withholding court consideration. A
case is fit for judicial decision when the issues are purely
legal and when the action in controversy is final and not
dependent on future uncertainties.'” Id.
(quoting Miller v. Brown, 462 F.3d 312, 319
(4th Cir. 2006)).
Mark's contention that the reduction in his respite hours
could lead to the loss of care by his sister is too remote
and speculative to be ripe for federal judicial review.
See Charter Fed. Sav. Bank v. Office of Thrift
Supervision, 976 F.2d 203, 208-09 (4th Cir.
1992) (“‘[I]n the context of an administrative
case, there must be ‘an administrative decision [that]
has been formalized and its effects felt in a concrete way by
the challenging parties.'”)(quoting Pac. Gas
& Elec. v. Energy Res. Comm'n, 461 U.S. 190, 200
C. Standing to Invoke Injunctive Relief
To satisfy Article III's case-or-controversy standing
requirements, a plaintiff must show (1) he has suffered an
“injury in fact” that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the
challenged action of the defendant; and (3) it is likely, as
opposed to merely speculative, that the injury will be
redressed by a favorable decision. Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,
180 (4th Cir. 2000) (citing Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560-61 (1992)). The standing
question is whether the plaintiff has “‘alleged
such a personal stake in the outcome of the controversy'
as to warrant his invocation of federal-court jurisdiction
and to justify exercise of the court's remedial powers on
his behalf.” Warth v. Seldin, 422 U.S. 490,
498-99 (1975) (quoting Baker v. Carr, 369 U.S. 186,
204 (1962)). Further, “when the asserted harm is a
‘generalized grievance' shared in substantially
equal measure by all or a large class of citizens, that harm
alone normally does not warrant exercise of
jurisdiction.” Id. at 499 (citing cases). In
addition, “even when the plaintiff has alleged injury
sufficient to meet the ‘case or controversy'
requirement, . . . the plaintiff generally must assert his
own legal rights and interests, and cannot rest his claim to
relief on the legal rights or interests of third
parties.” Id. (citing cases). “Without
such limitations- closely related to Art[icle] III concerns
but essentially matters of judicial self-governance-the
courts would be called upon to decide abstract questions of
wide public significance even though other governmental
institutions may be more competent to address the questions
and even though judicial intervention may be unnecessary to
protect individual rights.” Id. at 500 (citing
Schlesinger v. Reservists Comm. to Stop the War, 418
U.S. 209, 222 (1974) (“‘The desire to obtain
sweeping relief cannot be accepted as a substitute for
compliance with the general rule that the complainant must
present facts sufficient to show that his individual need
requires the remedy for which he asks.'”) (quoting
McCable v. Atchison, T. & S.F.R. Co., 235 U.S.
151, 164 (1914)).
As can readily be discerned from the allegations set forth
hereinabove, and further as argued in the hearing, Plaintiffs
allege systemic failures within the DHHS and DDSN systems and
ask the court to intervene in the administration and
operation of these agencies of the State of South Carolina.
In particular, Plaintiffs seek to have the court oversee
DHHS's promulgation of regulations that Plaintiffs
contend would force compliance with federal Medicaid law.
While Plaintiffs' allegations of wholesale mismanagement
and, indeed, criminal conduct within DHHS, DDSN, and the
Babcock Center are sobering, ”[i]t is an established
principle . . . that to entitle a private individual to
invoke the judicial power to determine the validity of
executive or legislative action he must show that he has
sustained or is immediately in danger of sustaining a direct
injury as a result of that action.” Lujan, 504
U.S. at 574-76. Plaintiffs show no cognizable particularized
injury. Plaintiffs lack standing to seek injunctive relief on
behalf of others regarding the allegations of mishandling of
funds and exploitation set forth in the amended complaint.
timely filed a notice of appeal. On December 15, 2016, the
Court of Appeals for the Fourth Circuit affirmed in part,
vacated in part, and remanded the action. ECF No. 368. First,
the Fourth Circuit affirmed the court's rulings as to
Mark on ripeness grounds. Id. at 33, n.21. Next, the
Fourth Circuit affirmed the court's determination that
the eligibility to receive ADHC services is moot based on the
consent orders entered into with these Plaintiffs.
Id. at 37.
Fourth Circuit determined, however, that there was a
“pattern of allegedly unreasonable delays and improper
denials” with respect to Kobe's wheelchair and ACD
entitlement. The Fourth Circuit found that Defendants
“have not met their ‘heavy burden' of showing
that after this litigation has concluded, Kobe will not once
again find himself without the equipment he needs and without
any ability to obtain it without significant delay.”
Id. at 39. Therefore, the Fourth Circuit vacated the
court's order on justiciability grounds, and remanded for
further proceedings. Id. In addition, the Fourth
Circuit determined that, since the case continues to present
justiciable issues, it would vacate the grant of summary
judgment against Plaintiffs on Counts One through Seven and
remand for further consideration of the viability of each of
Plaintiffs' claims against each Defendant. Id.
the Fourth Circuit turned to Judge Cain's order
dismissing Defendant Haley on the basis of Eleventh Amendment
immunity. The Fourth Circuit found that Judge Cain
properly ruled Defendant Haley lacked the special relation to
the administration of the South Carolina's Medicaid
program such that no effective prospective relief would be
available as against her. However, the Fourth Circuit found
that Plaintiffs had not specifically waived their claim
against Defendant Haley for damages. As a result, the Fourth
Circuit vacated the dismissal of Count One as against
Defendant Haley. The Fourth Circuit noted that no party had
addressed the application of United States v.
Georgia, 546 U.S. 151 (2006), with respect to whether
Congress validly abrogated South Carolina's Eleventh
Amendment immunity as to claims arising out of Title II of
the ADA. The test under Georgia instructs the lower
[D]etermine . . . on a claim-by-claim basis, (1) which
aspects of the State's alleged conduct violated Title II;
(2) to what extent such misconduct also violated the
Fourteenth Amendment; and (3) insofar as such misconduct
violated Title II but did not violate the Fourteenth
Amendment, whether Congress's purported abrogation of
sovereign immunity as to that class of conduct is
546 U.S. at 159.
the Fourth Circuit held that dismissing Counts One and Two
against Defendant Haley on Eleventh Amendment grounds was
premature. ECF No. 368, 50.
matter now is before the court on the following motions:
1. Motion for summary judgment on remand filed by Defendants
Buscemi, Butkus, Chorey, Huntress, Lacy, Laurent, and Waring
on April 28, 2017, and amended on August 8, 2017. Plaintiff
Kobe filed responses in opposition on September 14, 2017 and
September 17, 2017, and amended October 3, 2017, to which
these Defendants filed a reply on October 17, 2017.
2. Motion to dismiss filed by Defendant McMaster (formerly
Haley) on May 1, 2017, and amended on July 21, 2017.
Plaintiff Kobe filed responses in opposition on September 14,
2017 and September 17, 2017, and amended October 3, 2017, to
which Defendant McMaster filed a reply on August 16, 2017.
3. Motion for summary judgment filed by Defendant Leitner on
August 11, 2017. Plaintiff Kobe filed responses in opposition
on September 14, 2017 and September 17, 2017, and amended
October 3, 2017, to which Defendant Leitner filed a reply on
October 27, 2017.
4. Motion for summary judgment filed by Defendants Forkner
and Keck on August 11, 2017. Plaintiff Kobe filed responses
in opposition on September 14, 2017 and September 17, 2017,
and amended October 3, 2017, to which Defendants Forkner and
Keck filed a reply on October 17, 2017.
5. Third motion for summary judgment filed by Defendants
Babcock Center and Johnson on August 11, 2017. Plaintiff Kobe
filed responses in opposition on September 14, 2017 and
September 17, 2017, and amended October 3, 2017, to which
these Defendants filed a reply on October 27, 2017.
6. Motion for summary judgment filed by Kobe on August 21,
2017, to which Defendant McMaster filed a response in
opposition on September 8, 2017; Defendants Forkner and Keck
on September 13, 2017, Defendants Buscemi, Butkus, Chorey,
Huntress, Lacy, Laurent, and Waring on September 14, 2017;
Defendants the Babock Center and Johnson on September 14,
2017; and Defendant Leitner on September 14, 2017. Plaintiff
filed replies to responses of Defendants McMaster; Fortner
and Keck; Buscemi, Butkus, Chorey, Huntress, Lacy, Laurent,
and Waring on October 27, 2017; and replies to responses of
Defendants Leitner; and Babock Center and Johnson on October
7. Motion to strike Plaintiff's motion for summary
judgment filed by Defendants Babcock Center and Johnson on
October 27, 2017. Plaintiff filed a response in opposition on
November 13, 2017, to which these Defendants filed a reply on
November 29, 2017.
CAUSES OF ACTION []
ONE VIOLATION OF THE AMERICANS WITH DISABILITIES ACT
Plaintiffs and Class Members adopt and restate the allegations
set forth above in this complaint.
is undisputed that Plaintiffs are qualified individuals with
disabilities who have physical and/or mental impairments that
substantially limit one or more of their major life
activities, including, but not limited to one of more of the
following: thinking, walking, communicating, learning,
working, caring for themselves and concentrating. See 42
U.S.C. § 12102.
The treating professionals of the State have determined that
community-based treatment is appropriate for the Plaintiffs
and Class Members; they do not oppose community placement and
their needs can be reasonably accommodated without
fundamentally altering the nature of how the State delivers
Public entities, like the SCBCB, the South Carolina General
Assembly, SCDHHS, SCDDSN, the Babcock Center and local DSN
Boards are required by federal law to make reasonable
modifications in policies, practices, or procedures when the
modifications are necessary to avoid discrimination on the
basis of disability, except where the public entity can
demonstrate that making the modifications would fundamentally
alter the nature of the service, program, or activity. 28 CFR
Defendants who were members of the South Carolina Budget and
Control Board in 2009 violated the ADA by failing to insure
that the funds paid to SCDDSN were spent appropriately for
services Plaintiffs and Class Members need, despite repeated
warnings from the South Carolina Legislative Audit Council,
federal and state audits showing that SCDDSN was spending
those funds to purchase real estate to force waiver
participants into WAC's to profit the State.
Defendants have failed to consider the State's
obligations under the ADA in allocating funds necessary to
provide necessary community based services to Plaintiffs and
Class Members to allow them to receive services in the most
integrated setting appropriate to their treatment needs.
Defendants have failed to consider their obligations to the
Plaintiffs and Class Members under the ADA by expending tens
of millions of dollars unnecessarily to purchase and renovate
real property used as WAC's which properties are being
utilized to financially exploit persons who have
Defendants have acted to terminate the ADHC services of the
Plaintiffs and Class Members and to reduce other services
needed by Medicaid waiver participants which are necessary to
allow them to live in the least restrictive setting.
These actions were taken without conducting a cost analysis
to determine the cost of alternative services, including, but
not limited to the cost of WAC services and the real estate
funded by SCDDSN.
doing so, Defendants have been indifferent to the medical,
emotional and other treatment needs of the Plaintiffs and
Class Members and to the full costs of operating the
WAC's owned by local DSN Boards.
The treating physicians of the Plaintiffs and Class Members
have determined that ADHC services are medically necessary
and the Defendants have failed to give deference to the
treatment orders of their treating physicians in violation of
the mandate of the United States Supreme Court in
Olmstead v. L.C.527 U.S. 581 (1999).
Under the “integration mandate” of Title II of
the ADA, Defendants must administer long-term care services
in a manner that provides services to individuals who have
disabilities in the most integrated setting appropriate to
Services provided in WAC's are not appropriate to the
needs of the Plaintiffs and Class Members.
The actions taken by Defendants discriminate against persons
whose physicians have determined that they require ADHC, by
denying services that are appropriate to their needs.
The State's unjustified attempts to force these persons
into WAC's place them at risk of institutionalization,
including hospitals, nursing homes and ICF/MR's and it
constitutes a form of discrimination based on disability
which is prohibited by Title II, 42 U.S.C. §
The arbitrary determinations made by DSN Service
Coordinators, who are acting on directives from Defendant
Kathi Lacy and other individual Defendants for economic gain,
will force the Plaintiffs and Class Members into
inappropriate placements where their health and safety will
be endangered at greater costs to taxpayers of the State.
The services Plaintiffs and Class Members request are not
unreasonable, given the demands on the State's health
care budget and the resources available to pay for these
services and the ADHC services Plaintiffs request cost less
than placement in a hospital or an SCDDSN Regional Center.
The Plaintiffs' needs can be reasonably accommodated, as
has been demonstrated by their continuous care in the
community while receiving ADHC services for many years.
Providing the ADHC services Plaintiffs request would not
place an unreasonable burden on the State nor would it force
the state to fundamentally alter the nature of its programs.
ADHC services ordered by Plaintiffs's and Class
Members' physicians can be provided without undue burden
to the state, taking into consideration its obligation to
provide health care and services with an “even
hand.” 280. Defendants have further violated the ADA by
denying Kobe's requests for an ACD and his choice to move
to a less restrictive setting and by reducing Mark's
respite services, which are all needed for him to remain out
of an institutional setting.
Defendants have failed to make reasonable modifications to
the programs operated by SCDDSN which are necessary for
Plaintiffs to receive services in the least restrictive
The failure to offer Plaintiffs and Class Members services,
including, but not limited to ADHC services, to allow
Plaintiffs to live in integrated home and community based
settings constitutes unlawful discrimination in violation of
Title II of the ADA and its implementing regulations at 28
C.F.R. § 35.130(d).
Defendants have failed to exercise their discretion in a
non-discriminatory manner by denying Plaintiffs necessary
funds used to provide the ADHC services they require to live
the least restrictive setting.
The willful and intentional acts of the individual Defendants
have placed the Plaintiffs and Class members at risk and
caused them to experience extreme emotional distress and fear
of retaliation for filing this lawsuit in violation of the
andti-retaliation provisions of the ADA.
Plaintiffs request a finding that Defendants have violated
the ADA and its implementing regulations and an order
requiring that Defendants pay attorney fees, expenses and
costs and damages in such amount as the Court shall determine
to be just and fair.
TWO VIOLATION OF SECTION 504 OF THE REHABILITATION ACT
Plaintiffs adopt and restate the allegations set forth above
in this complaint.
Section 504 of the Rehabilitation Act of 1973 provides,
“no otherwise qualified individual with a disability in
the United States...shall, solely by reason of her or his
disability, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance.
29 U.S.C. § 794(a), 288. “Program or activity'
includes a department, agency, special purpose district, or
other instrumentality of a State or local Government. 29
U.S.C. § 794(b)(1)(A).
The Medicaid Waiver programs administered by SCDDSN are
“programs or activities” provided by the State of
“Recipient” of federal financial assistance also
includes any public or private agency or other entity to
which Federal financial assistance is extended directly or
through another recipient. 28 C.F.R. § 41.3(d).
SCDHHS, SCDDSN, local DSN Boards and the Babcock Center are
all recipients of federal financial assistance.
Regulations implementing Section 504 require a recipient of
federal financial assistance to administer its services,
programs, and activities in the “most integrated
setting appropriate” to the needs of qualified
individuals with disabilities. 28 C.F.R. § 41.51(d).
Federal Medicaid funds account for a majority (nearly 80%
when this lawsuit was filed) of the cost of the home and
community based waiver programs administered by SCDDSN.
Defendants and their contracting agencies and organizations
are recipients of Federal financial assistance under Section
504 and its implementing regulations.
Plaintiffs are “qualified persons with
disabilities” within the meaning of Section 504 because
they have physical and/or mental impairments that
substantially limit one or more major life activities, and
they meet the essential eligibility requirements for the home
and community based waiver programs administered by SCDDSN.
See 29 U.S.C. § 705(9).
The treating physicians of the Plaintiffs and Class Members
have determined that ADHC services are provided in the
“most integrated setting appropriate” to their
medical needs as qualified individuals with disabilities. 28
C.F.R. § 41.51(d).
The South Carolina Budget and Control Board failed to insure
that the funds allocated to SCDDSN were spent as appropriated
by the General Assembly to provide services, despite warnings
from the South Carolina Legislative Audit Council that SCDDSN
was spending those funds improperly for the purchase of real
Defendants have threatened to terminate funds necessary for
Plaintiffs and Class Members to receive services in the most
integrated setting appropriate to meet their needs in order
to financially exploit them.
Defendants have failed to make reasonable modifications to
home and community based waiver programs to allow Plaintiffs
and Class Members to receive ADHC services and other home and
community based waiver services so that they can successfully
live in the least restrictive setting appropriate to their
Failure to provide services in the least restrictive setting
appropriate to the needs of Plaintiffs and Class Members and
forcing them to attend WAC's, where they will be
financially exploited, constitutes unlawful segregation in
violation of Section 504 of the Rehabilitation Act and its
implementing regulations at 28 C.F.R. 42.51(d).
The individual Defendants, Buscemi, Lacy, Waring, Huntress,
Chorey and Johnson have acted willfully together and with
others in intentional disregard of the federal rights of the
Plaintiffs and Class Members in willful and intentional
violation of Section 504.
Defendants have also utilized criteria and methods of
administration that subject Plaintiffs to discrimination on
the basis of disability, including risk of unnecessary
institutionalization, by (1) failing to assess properly the
services and supports that would enable Plaintiffs to live in
the least restrictive setting, (2) failing to ensure that
Plaintiffs have access to Medicaid-covered services that will
meet their needs in the community, and (3) compelling health
care providers to reduce or eliminate recommended ADHC
services, thereby violating Section 504 and its implementing
Because of the willful and intentional acts of the individual
Defendants, the Plaintiffs and Class Members have experienced
extreme emotional distress due to fear of loss of services
which their physicians have determined to be medically
necessary and fear of harm if they are forced to attend a
Class Members have been subjected to extreme emotional
distress when they were forced to attend WAC's with
little to no notice or opportunity to appeal these decisions.
Plaintiffs have experienced fear of retaliation for filing
this lawsuit and for advocating for their rights.
Defendants have violated Section 504 by failing to provide
Kobe with an ACD and services in an apartment setting and
they have violated Mark's right to receive respite
services at the pre-January 1, 2010 level and other cost
effective home and community based waiver services that allow
waiver participants to live in the least restrictive setting.
Plaintiffs and Class Members request a finding that
Defendants have violated Section 504 and its implementing
regulations and that Defendants pay attorney fees, expenses
and costs and such other damages to the Plaintiffs and Class
Members, including damages for emotional distress, in such
amount as the Court shall determine to be just and fair.
Plaintiffs and Class Members are entitled to reasonable legal
fees, costs and expenses of this litigation.
THREE VIOLATION OF 42 U.S.C. § 1983 309. Plaintiffs
adopt and restate the allegations set forth in the paragraphs
all relevant times herein, Plaintiffs and Class Members have
had a right under the Medicaid Act to receive ADHC.
Defendants Haley, Sanford, Cooper, Eckstrom, Chellis,
Leatherman, Forkner, Keck, Butkus, Laurent, Buscemi, Lacy,
Waring, Chourey, Huntress, Johnson and Leitner are persons
who, acting under color of law, have violated the civil
rights of the Plaintiffs and Class Members by violating
provisions of the Medicaid Act and the constitutional rights
of the Plaintiffs and Class Members.
Defendants Butkus, Laurent, Buscemi, Lacy, Waring, Huntress,
Chorey and Johnson and others who will be identified during
discovery schemed to divert funds from ADHC services to
WAC's and to deny the rights of Plaintiffs and Class
Members to these and other Medicaid services needed to live
in the least restrictive setting.
Acting under the color of law, Defendants worked a denial of
the rights and privileges of Plaintiffs and Class Members
which are secured by the United States Constitution or by
Federal law and which are guaranteed by the Fourth, Fifth,
and Fourteenth Amendments to the Constitution of the United
States, to wit, they have denied their right to life, liberty
and the pursuit of happiness by denying ADHC ...