Samantha R. v. State of North Carolina and NC Department of Health and Human Services

In May 2017, Disability Rights NC filed a lawsuit against the State of North Carolina and the NC Department of Health and Human Services. The suit alleges that the State’s fractured and inefficient system of care is forcing many people with intellectual and/or developmental disabilities (I/DD) to live in institutions, and thousands more to be segregated or placed at risk for institutionalization unnecessarily.

Status: In discovery phase. In December 2017, Superior Court Judge Allen Baddour rejected the State’s motion to dismiss the case.

Read more:

Aldridge v. Carowinds

In December 2017, Disability Rights NC filed a federal lawsuit alleging that the Carowinds Amusement Park in Charlotte discriminates against people with disabilities. Plaintiff Matthew Aldridge and his two children were told they could only enjoy ten of the 50-plus rides in the amusement park because they each have at-the-knee amputations. However, Carowinds did not know which rides actually presented a health or safety risk to the Aldridges. Over the course of their visits, Carowinds told the Aldridges they could enjoy 25 rides, then as many as 30 rides, and finally only 10 rides. Carowinds’ unjustified exclusion of the Aldridges from rides they can safely ride is discriminatory.

Status: Awaiting response from defendant.

Read more:

Disability Rights North Carolina v. Richard Brajer, Secretary of the NC Department of Health and Human Services

In October 2016, Disability Rights NC filed a complaint against the NC Department of Health and Human Services because of the significant gaps in services for children with complex behavioral health needs. These are children who have been diagnosed with 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—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.

Status: Settled. The parties reached a settlement agreement 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 an outpatient clinic dedicated to serving children with complex needs, staffed by experienced clinicians.

In addition, NC DHHS has made its community crisis support program (NC START—Systemic, Therapeutic Assessment, Respite and Treatment) available statewide.

Disability Rights NC is monitoring the State’s implementation of the settlement agreement.

Read more:

Bradley Elmendorf v. Duke University

In August 2014, 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 University 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.

Status: Settled. Under the settlement, Duke agreed to take the following measures:

  • Provide additional training to its disability services staff and liaisons to enhance the effectiveness of student accommodations;
  • 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
  • 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, which rapidly converts inaccessible reading material to an accessible format.

Wilson, et. al. v. NC Division of Motor Vehicles

In February 2014, Disability Rights NC filed this lawsuit against the NC Division of Motor Vehicles (DMV) because of its Medical Review Program. Doctors, family members, DMV examiners, and law enforcement officers can refer drivers who they believe are unsafe to the program for medical screening. However, capable, safe drivers with disabilities were being referred to the program based on speculation, stereotypes, and generalizations about their ability to drive. Once in the program, drivers with disabilities had to pay out-of-pocket for behind-the-wheel driving tests and comprehensive physical evaluations. In addition, the DMV often imposed arbitrary restrictions on their licenses. Drivers seeking to challenge the program were denied due process, such as an opportunity to appeal or to have a hearing.

Status: Settled. Under the consent judgment filed in June 2016, 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); and
  • 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

In March 2014, Disability Rights NC filed this complaint on behalf of Nicholas C., a young man with autism residing at the J. Iverson Riddle Developmental Center (JIRDC) in Morganton. Nicholas was routinely held in an “ambulatory restraint” designed to restrict the range of motion of his arms. This device 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, and he was forced to wear at least the belt portion for 157 days in a row. Disability Rights NC made multiple attempts to address the matter with JIRDC staff and NC DHHS before filing the complaint.

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

Disability Rights North Carolina v. Wos

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. 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.

Status: Court Order entered. 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

Disability Rights NC filed this case against the NC Department of Health and Human Services 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 into 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 toward institutional living. Legal Services of Southern Piedmont and the National Health Law Program were co-counsel with Disability Rights NC in this case.

Status: Settled. In April 2016, the U.S. District Court approved the settlement agreement, 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, such as requiring the assessor to schedule the assessment ahead of time, allowing a caregiver or other trusted individual to attend the assessment, and requiring that evidence of cognitive limitations be taken into consideration when scheduling an assessment and during the assessment. The State also agreed to reassess Medicaid recipients whose personal care services had been denied or terminated.

L.S. et al. v. Wos et al.

Disability Rights NC filed this lawsuit in 2011 against the Secretary of the NC Department of Health and Human Services (NC DHHS) because of an issue with the Medicaid program known as the Innovations Waiver. We were challenging the way the NC DHHS, acting through its contractor PBH (formerly Piedmont Behavioral Health and currently Cardinal Innovations), had implemented the Innovations Waiver. PBH made substantial changes to the Innovations Waiver, which serves those with intellectual and developmental disabilities. The changes included creating 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.

Status: Settled. 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

Disability Rights NC filed this employment discrimination suit in October 2012. 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 Driver’s License (CDL) so that they can be called upon to drive a school bus if needed. After developing a loss of peripheral vision, Ms. Bordonaro no longer qualified for a CDL. She asked for an exception, which was allowed under the school system’s written policies, but 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.

Status: Settled. The settlement was reached in late 2013. The Johnston County Board of Education created a new policy, which directed the Superintendent to examine the number of bus drivers needed and to 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.