Disability Rights North Carolina held a news conference January 11, 2012, calling on state officials to provide necessary services to North Carolina's children with complex needs, following an investigation that revealed an appalling lack of available mental health services, leading to long waits in emergency rooms, hospitalizations or placements hours away from home, and institutionalization out-of-state. A Special Report was released -- Kids Caught in a Double Bind: North Carolina's Failure to Care for Children with Dual Disabilities.

U.S. District Court Judge Terrence Boyle today stopped the State of North Carolina from implementing policy on 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 Americans with Disabilities Act (ADA) prohibits the unnecessary segregation and unjustified institutional isolation of persons with disabilities. The State is required to provide federally-funded services "in the most integrated setting appropriate to the needs of the individual," and the Medicaid Act requires that recipients not be treated differently when they have similar levels of need.

In his order granting a preliminary injunction and class certification, Judge Boyle found that plaintiffs offered sufficient evidence that the State's policy on personal care services violates the Medicaid Act's requirement to provide comparable services and the ADA's integration mandate. The policy under review allowed individuals in facilities such as Adult Care Homes to be eligible for personal care services by meeting one set of eligibility requirements and required individuals in the community to meet a far higher standard of need. Under the policy, individuals who would not be eligible for personal care services while living in the community would get the care they needed by entering an Adult Care Home.

Judge Boyle also ruled the plaintiffs were likely to be successful on the claim that the letters sent to the plaintiffs to deny them services failed to comply with due process because the letters "contained verbatim language that failed to provide detailed reasons for the proposed termination" and that this was unlikely to be sufficient for a service that "could be quantified as a brutal need.'" The Due Process Clause of the Constitution requires adequate notice be provided when a Medicaid service is terminated. In granting the preliminary injunction and motion for class certification, Judge Boyle recognized that the "[l]ack of in-home PCS could result in either serious physical or mental injury or forced entry into institutional settings for many of the named Plaintiffs and members of the class..."

We are thrilled with Judge Boyle's decision. He confirmed our position that the State's policy pushed people toward institutional settings," says Vicki Smith, Executive Director of Disability Rights NC. It is our hope that this decision will encourage the State to develop policies that articulate a clear priority to keep people in their homes and community. Such policies will be cheaper and lawful -- a double win for the NC taxpayers."

Plaintiffs are represented by Disability Rights NC, Legal Services of Southern Piedmont, and the National Health Law Program.

November 22, 2011

The Honorable Beverly E. Perdue
Office of the Governor
Constituent Services Office
116 W. Jones Street
Raleigh, NC 27603

Dear Governor Perdue:

North Carolina is at a difficult and potentially expensive crossroads in delivering services to people with disabilities. As Governor, you must choose which road to take. You can provide courageous leadership and negotiate a settlement with the U.S. Department of Justice, leading North Carolina in a bold new direction which complies with federal law. An agreement will make the promise of Olmstead a reality in our state -- the opportunity for people with mental health and other disabilities to live and participate in our communities with adequate and appropriate supports. The alternative, allowing the U.S. Department of Justice to sue our state in order to enforce federal law, will divert precious resources from service provision to protracted litigation and effectively relinquish control to a special master.

The odds are not in the state's favor on this issue. Recognizing the U.S. Supreme Court's mandate set forth in Olmstead, a decade and more of reports commissioned by the North Carolina General Assembly have highlighted North Carolina's failure to provide our citizens with mental health disabilities a real chance for recovery with dignity. Some of these reports provided recommendations on how North Carolina can achieve the requirements of Olmstead. We know what to do, yet fail to do it.

What people with mental health disabilities want and need -- and what the law requires -- are options enabling recovery for meaningful futures. This benefits not only the individuals with mental health disabilities but helps to ensure that every North Carolina citizen will be enriched with healthy, productive neighbors.

To quote South Carolina Governor Nikki Haley (R) in her response to a 2011 NAMI report, "We've got to start dealing with the problem.... We have to prioritize it because what's happening now is these victims of mental illness are ending up in jail or in the hospital, and what they really need is treatment. These are people who can function on a day-to-day basis if they just get the services they need.... And by not giving them the treatment they need, it's only costing taxpayers more money later."

On behalf of the Board of Directors, staff and clients of the State's Protection and Advocacy system, I urge you to continue negotiating with the U.S. Department of Justice. Reach a just resolution regarding the options and choices available to North Carolinians living with severe and persistent mental illness and spare the state's resources from drawn-out litigation that will surely result in an order directing North Carolina to do what we can achieve right now through settlement negotiations. Our communities are strengthened by inclusion of people with disabilities, especially the people who are finally provided with the opportunity and support to lead meaningful and participatory lives in North Carolina. We hope North Carolina embraces the challenge. With your leadership the future can be bright.

Sincerely,
Vicki Smith
Executive Director

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