Appeals Court Finds DHHS Responsible for Medicaid Contractor's Compliance with the Law

May 10, 2013, Richmond, VA– The Fourth Circuit Court of Appeals dismissed a challenge to a lower court ruling in a Medicaid class-action suit against North Carolina, finding that the defendant, a Medicaid managed care plan, could not maintain its appeal without the state’s involvement. Last year, a federal District Court ordered North Carolina to halt reductions to home and community-based services and restore lost services until the state’s Medicaid agency and its managed care contractor, PBH Healthcare (now doing business as Cardinal Innovations Healthcare), provided beneficiaries with adequate notices and opportunities for impartial hearings when their services were denied, reduced or terminated. Members of the plaintiff class—children and adults with severe developmental disabilities—were threatened with deteriorating health, financial strain and forced to go to institutions to get care.

The Fourth Circuit dismissed PBH’s challenge to a lower court ruling finding that because PBH alone appealed, the court could not disturb the lower court’s order. The court held that as an agent of the state, PBH had no authority to challenge North Carolina’s decision not to join the appeal. Read Court's Opinion.

“Today’s decision is important because it tells state governments that they cannot simply hand Medicaid programs over to private contractors and then walk away, leaving beneficiaries without crucial, mandatory legal protections,” said National Health Law Program Legal Director  Jane Perkins.  Doug Sea, an attorney at Legal Services of Southern Piedmont added: “Because of this decision, scores of our most vulnerable citizens who desperately need the services that were illegally taken away from them will continue to benefit from the lower court ruling and will receive due process.”

“Once again, the courts have confirmed that state Medicaid agencies must assure that their agents do not deny due process,” said Disability Rights North Carolina Litigation Director John Rittelmeyer.  Read the entire Press Release.

Court Orders Reinstatement of Personal Care Services to Pashby Class Members

May 6, 2013 -- After a hearing in the district court on May 1, 2013, Judge Boyle issued an order clarifying the scope of the injunction in Pashby v. Wos. The court ordered the State to reinstate personal care services to all class members whose services were terminated on June 1, 2011. Additionally, the court ordered that, prior to the application of the new personal care policy, the State would have to perform a reassessment of each class member and afford appeal rights and maintenance of services to any class member terminated under the policy.

If you believe are a Pashby class member and have questions, contact either Jennifer Bills or Elizabeth Edwards in our office at 877-235-4210.

Read more about this case and get copies of the judicial decisions here.

Court of Appeals Sends Case Back to District Court

April 2, 2013, Raleigh, NC:  Today the US Court of Appeals for the Fourth Circuit denied the State’s request for a rehearing in Pashby v. Wos. The appellate court affirmed a decision made by US District Court Judge Terrence Boyle in 2011 to stop the State of North Carolina from implementing a new policy concerning Medicaid personal care services that he said treats people with similar needs differently and puts North Carolinians “who have been successfully living in their own homes…at risk of segregation, in the form of institutionalization.” The case will now return to district court for further proceedings and a final determination.

This is the first time that the Fourth Circuit has held that the Olmstead mandate extends to people with disabilities who are at risk of institutionalization. The appeals court agreed with Judge Boyle’s conclusion that adult care homes are “institutional settings that segregate residents from the community . . .” Read more about this case and get copies of the judicial decisions here.

US court backs blocking NC disabled services cuts - News & Observer, April 2, 2013.

Catawba County Schools Violated Federal Law by Refusing to Allow a Student’s Service Animal in School

March 12, 2013, Raleigh, NC: Last week, Disability Rights North Carolina received notice from the U.S. Department of Education Office of Civil Rights (OCR) that Catawba County Schools violated the rights of an elementary school student when it refused to allow the student’s highly trained service animal in its classrooms. The school voluntarily entered an agreement with OCR to allow the service animal – a dog named “Chatham” – to accompany the student to school.

A student with a disability has a right to use a service animal in school facilities under both the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. In this student’s case, his disabilities cause aggressive and self-injurious behaviors, lack of impulse control, and elopement. Chatham was trained to respond to and redirect these behaviors. Chatham also is used as a tethering system to prevent elopement and is trained to search for and rescue the student if he runs away.

Holly Stiles, the Disability Rights NC attorney who represented the student and his parents said, “The right of access for service animals is especially important because separating a service animal and its user for any period of time is harmful to the effectiveness of the team. The school system’s refusal to allow Chatham to accompany this student to school for the past three years contributed to the student’s regression behaviorally and lessened the service animal’s overall effectiveness when the student was not in school.”

OCR’s determination was in response to a complaint filed by Disability Rights NC in September 2012. The school system and the student’s parents have disagreed on the service animal’s place in the student’s educational program since August 2010 when the student entered the pre-kindergarten program.

OCR found that the service animal was an important part of the student’s ability to participate independently in school and community activities. It noted that the school’s use of a “calming space” in a tent away from his class caused the student to be separated from educational activities and did not help him develop independence in his activities.

OCR will keep the case open to monitor the school system’s implementation of the agreement. Read the OCR findings letter and Agreement with the school. Click here for news video from WSOC-ABC in Charlotte, NC.

Have You Lost Eligibility for Medicaid Reimbursement of Your Personal Care Services?

The State Division of Medical Assistance estimates that between 10,000 and 12,000 people will lose eligibility for Medicaid reimbursement of personal care services as a result of a change in state law. About 1,000 of the people at risk live in group homes with the remainder in adult care homes and family care homes.

If you received a letter that says the Medicaid-funded service or equipment you asked for is denied, terminated, suspended, or reduced, you have the right to appeal within a specific amount of time. Check out the fact sheets on our Resources page for guidance on how to appeal a Medicaid determination.