Systemic Cases - Current and Recently Concluded

Disability Rights North Carolina v. State of North Carolina, NC DHHS, and Secretary Mandy Cohen

In May 2017, Disability Rights NC filed a lawsuit against the State of North Carolina and the NC Department of Health and Human Services. Our suit alleges that the State has a fractured and inefficient system of care for people with intellectual and developmental disabilities (I/DD). Because of this poor system, thousands of people with I/DD are forced to live in institutions or are segregated from their families and communities.

The suit includes five plaintiffs—all people in North Carolina with I/DD who are subject to improper segregation or are at risk of segregation or institutionalization. The lawsuit asserts that their individual experiences demonstrate how DHHS has failed people with I/DD who face continual challenges to maintaining stable engagement in their communities.

Read the press release, news coverage of the lawsuit, and the complaint here.

Disability Rights North Carolina v. Brajer (U.S. District Court for the Eastern District of NC Case # 5:16-cv-854)

There are hundreds of children in North Carolina who have complex behavioral health needs—a developmental or intellectual disability and a mental illness. For children with complex needs who receive Medicaid, federal law requires North Carolina to provide mental health services to diagnose and treat their conditions. These children are supposed to get those services in their community—meaning while they are living at home, in a group home, or in some other place that is not an institution. However, many of them end up in emergency rooms, institutions, and even prisons because they cannot get the care they need in their communities.

Disability Rights NC filed a complaint against the NC Department of Health and Human Services because of the significant gaps in services for these children. In October 2016, the parties reached a settlement that will provide these kids with greater access to services and supports that will keep them out of institutions and help them live at home.

Under the agreement, NC DHHS commits to the following measures:

  • Establish a uniform process for identifying and assessing children with complex needs, so care is consistent across the state;
  • Ensure these children receive appropriate services;
  • Authorize case management services to assist the children's parents or guardians in identifying and coordinating services; and
  • Begin operation of one outpatient clinic dedicated to serving children with complex needs, staffed by experienced clinicians, no later than April 1, 2017.

In addition, NC DHHS has agreed to seek funding from the NC General Assembly to expand its community crisis support program for children statewide. NC START—Systemic, Therapeutic Assessment, Respite and Treatment—is an essential service for children with complex needs who are in crisis, but is only available in limited areas in North Carolina. In December 2016, NC DHHS issued a Joint Communication Bulletin to all LME/MCOs explaining the terms of the settlement.

Bradley Elmendorf v. Duke University (U.S. District Court for the Middle District of North Carolina, Case # 1:14-CV-697)

Disability Rights NC filed this lawsuit because Duke University failed to accommodate Bradley Elmendorf, a student with Dyslexia. Mr. Elmendorf overcomes his reading difficulties by listening to, rather than visually reading, books and other printed materials. Mr. Elmendorf enrolled at Duke's Master of Divinity program after the university assured him that it would provide him with all of his textbooks and assigned readings in an audio format. Duke failed to provide the agreed upon accommodations. As a result, he had to drop, withdraw from, and take incompletes in many of his courses. When Mr. Elmendorf filed a complaint with Duke’s internal Office of Institutional Equity, the Divinity School told him he would lose his tuition scholarship if he did not withdraw his grievance.

In May 2016, Disability Rights NC resolved this lawsuit. Under the settlement, Duke agreed to provide additional training to its disability services staff and liaisons to enhance the effectiveness of student accommodations, to forge a connection between the disability services office and IT staff to ensure that technical issues related to the provision of accommodations are resolved quickly, and to publicize the student ombudsman's contact information on the accessibility services website. Also, though not a component of the resolution of the case, Duke invested in an online program called SensusAccess that rapidly converts inaccessible reading material to an accessible format to provide more timely access to alternative formats of educational materials.

Wilson, et al. v. NC Division of Motor Vehicles (U.S. District Court for the Eastern District of NC Case # 5:14-CV-085-BO)

The NC DMV Medical Review Program permits doctors, family members, DMV examiners, and law enforcement officers to refer drivers who are believed to be unsafe to the program for medical screening. Filed in February 2014, this case alleges that capable, safe drivers with disabilities are being referred to the NC DMV Medical Review Program based on speculation, stereotypes, and generalizations about their ability to drive. Once referred to the Program, drivers with disabilities are required to pay out-of-pocket for behind-the-wheel driving tests and comprehensive physical evaluations, and they receive arbitrary restrictions on their license. Drivers seeking to challenge the Program have been denied due process, such as an opportunity to appeal or to have a hearing.

This case was settled in June 2016. Under the consent judgment, the DMV agreed to do the following:

  • End repeated medical reviews of individuals with non-degenerative conditions, such as cerebral palsy, a spinal cord injury, or missing limb.
  • Stop automatically requiring that drivers who use assistive technology, such as hand controls or a walker, be road-tested or undergo a medical review.
  • Provide avenues to appeal and challenge requests for medical review and driving restrictions.
  • Improve access to information about the basis for the DMV's actions, and give drivers access to copies of their Medical Review Program records.
  • Fulfill requests from drivers with non-degenerative conditions for removal from the Medical Review Program. The DMV has committed to removing drivers proactively in some cases.
  • Provide information about how to appeal and challenge requests for medical review and driving restrictions, and about how to request removal from the program. 

Nicholas C. v. Wos (U.S. District Court of the Western District of NC Case # 1:14-cv-72-MR-DLH)

Nicholas C. was a young man with autism residing at the J. Iverson Riddle Developmental Center (JIRDC) in Morganton. He was routinely held in a device called an "ambulatory restraint" designed to restrict the range of motion of his arms. It consisted of leather wrist cuffs attached by straps to a leather belt. Nicholas was kept in the device for 24 hours a day for 13 days straight. He was forced to wear at least the belt portion for 157 days in a row.

After multiple failed attempts to address the matter with JIRDC staff and NC DHHS, Disability Rights NC filed a legal complaint in March 2014. The parties reached a settlement in January 2015. The settlement requires NC DHHS to develop and implement the following policies at all three state-operated developmental disability centers:

  • Require staff to release an individual from a restraint device as soon as the likelihood of immediate harm has ended;
  • Prohibit the use of a restraint device on an individual who is sleeping; and
  • Require staff to release an individual from a restraint device to eat, shower, and use the toilet.

The settlement also requires DHHS to provide training to its staff on federal and state legal requirements for the use of restraint.

Disability Rights North Carolina v. Wos (Wake County Superior Court Case # 13-CV-08937)

Disability Rights NC filed suit in June 2013 because NC DHHS had failed to make Medicaid available to many workers with disabilities as required by the Health Coverage for Workers with Disabilities Act. The law allows people with disabilities to work and maintain Medicaid coverage.

Some individuals with disabilities face the difficult choice of returning to work or maintaining critical health care coverage available to them through Medicaid. Recognizing this barrier, Congress authorized the states to enroll workers with disabilities in Medicaid when their earnings would otherwise make them ineligible. The General Assembly adopted the Health Coverage for Workers with Disabilities Act in response.

Beginning in 2009, NC DHHS suspended implementation of the law and failed to make Medicaid available to workers with disabilities whose incomes exceed 150% of federal poverty. On November 6, 2013, Superior Court Judge Allen Baddour entered an order that required the NC DHHS to comply with the law and ensure that the program is available to all who qualify.

Pashby v. Delia (U.S. District Court for the Eastern District of NC Case # 11-cv-0273-BO; U.S. Court of Appeals for the Fourth Circuit Case # 11-2363) Visit our Pashby Settlement page for settlement details.

This case was filed against the State of North Carolina in 2011 to stop the implementation of cuts to in-home services. Among the services to be cut were assistance with bathing, dressing, toileting, mobility, and eating—cost-effective services on which some individuals with disabilities depend to avoid having to move to an adult care home or other institutional setting. The suit charged that the new state policy set a higher bar for those living at home to qualify for the services than for those living in adult care facilities. This created a bias towards institutional living.

In December 2011, U.S. District Court Judge Terrence Boyle granted a preliminary injunction ordering the State of North Carolina to stop implementing the new policy, saying it 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 State appealed, but the U.S. Court of Appeals for the Fourth Circuit affirmed Judge Boyle's decision. This is the first time that the Fourth Circuit has held that the Olmstead mandate extends to people with disabilities at risk of institutionalization.

On April 1, 2016, the federal court approved a settlement, which affected more than 10,000 people with disabilities in North Carolina. The State agreed to assess the need for personal care services the same way for all Medicaid recipients, regardless of where they lived. The settlement included additional protections, including that the assessor must schedule the assessment ahead of time, that a caregiver or other trusted individual must be allowed to attend the assessment, and that evidence of cognitive limitations must be taken into consideration when attempting to schedule or assess someone. The State also agreed to reassess Medicaid recipients whose personal care services had been denied or terminated.

Legal Services of Southern Piedmont and the National Health Law Program were co-counsel with Disability Rights NC in this case.

L.S. et al. v. Wos et al. (U.S. District Court for the Eastern District of NC Case # 11-cv-0354-FL)

This lawsuit was filed in 2011 to challenge the manner in which NC DHHS, acting through its contractor PBH (formerly Piedmont Behavioral Health and currently Cardinal Innovations), had implemented a new version of a Medicaid waiver program known as the Innovations Waiver. PBH, a managed care organization within the LME system, made substantial changes to the Innovations Waiver serving those with Intellectual and Developmental Disabilities. The changes included the implementation of as many as 31 tiers within the waiver, each with its own budgetary limit. The tier assignment process, called the Support Needs Matrix, resulted in substantial service cuts for a number of waiver recipients. However, there was no appeal or due process procedure that would allow the recipient to challenge the tier assignment.

On April 6, 2015, US District Court Judge Louise Flanagan approved a settlement in the case. Under the settlement, all LME/MCOs that provide services through the Innovations Waiver must take steps to ensure that all Innovations Waiver recipients

  • Are empowered to request the services they want, in the amount they want them;
  • Understand that the Support Needs Matrix is a guideline and not a binding limit on services;
  • Are made aware of their due process rights; and
  • Understand their rights and responsibilities under the Waiver.

Bordonaro v. Johnston County Board of Education (U.S. District Court for the Eastern District of NC Case # 12-cv-0683-BO)

This is an employment discrimination suit filed on October 18, 2012 under the Americans with Disabilities Act. Patricia Bordonaro worked as a teaching assistant for Johnston County Schools. The school system requires nearly all its staff, including janitors and cafeteria workers, to maintain a Commercial Drivers License (CDL) so that they can be called upon to drive a school bus if needed. After developing a loss of peripheral vision, the Plaintiff no longer qualified for a CDL. Although the school system’s written CDL policy makes mention of exceptions to the general requirement and Plaintiff requested such an exemption, her request was denied and she was fired. Her termination occurred within one month after she addressed the Johnston County School Board at a public meeting and asked them to change the discriminatory policy.

This case was settled in late 2013. As a part of the settlement, the Johnston County Board of Education modified a policy that prevented people with disabilities from working in the schools. Under the new policy, the Superintendent will examine the number of bus drivers needed by the school system in relation to the number of routes required, and will grant exemptions after assuring there are a sufficient number of drivers to transport students. In addition, the Board agreed to update its website and materials to make it clear that exemptions to the policy are available. Finally, the Board paid Ms. Bordonaro the approximate equivalent of two years' salary.

Similar lawsuits filed against the Edgecombe County Public School System were settled in early 2014.

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