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Disability Action Center NW

Judge: Medicaid-covered services must be restored

Medicaid care required for 3 with disabilities during suit

Tuesday, March 8, 2011

South Carolina must restore Medicaid-covered services for three disabled Upstate residents while their lawsuit alleging that program reductions violated the Americans with Disabilities Act goes to trial, a U.S. district judge in Greenville ruled Monday.

The suit alleges the state’s January 2010 Medicaid cuts, which capped patients’ weekly maximum of personal care attendant hours, could force them to live in institutions instead of getting treatment at their own homes.

Monday’s preliminary injunction comes in the wake of a new round of Medicaid program cuts affecting people with disabilities.

The S.C. Department of Health and Human Services cut the number of total annual occupational, physical and speech therapy sessions available to patients from 225 to 75, while the S.C. Department of Disabilities and Special Needs last month discussed a host of cuts to its own Medicaid programs for the upcoming budget year.

The suit, filed last spring, lists former Gov. Mark Sanford, the Department of Health and
Human Services and the Department of Disabilities and Special Needs among the defendants.

They have argued it is “very unlikely” the reduction in services would result in institutionalization.

Health and Human Services spokesman Jeff Stensland said his department, which faces a budget shortfall of about $125 million this fiscal year, is “in the process of analyzing the ruling and considering our options.”

A spokesman for Gov. Nikki Haley referred questions to Stensland.

A Disabilities and Special Needs spokeswoman did not return requests seeking comment.

The suit involves a Spartanburg man and a man and a woman from Clinton — listed as Peter B., Jimmy E. and Michelle M., respectively — who received in-home care for their disabilities. When the state cut the amount of Medicaid-covered at-home care they could receive, the patients’ attorney argued they would be forced to live in institutions.

Such a move would violate the Americans with Disabilities Act, which prohibits people with disabilities from being segregated in institutions when they could instead receive care in less restrictive settings, they allege in the suit.

The plaintiffs’ caregivers and physicians have testified that a reduction in services would “cause dramatic changes in their current living conditions” that “would lead to the need for institutional care.”

In her ruling, District Judge J. Michelle Childs said the Medicaid changes “could substantially impact each of their abilities to remain in the community” and that evidence “demonstrates that the threat of institutionalization is very real.”

Before January 2010, the state did not cap Medicaid recipients’ total number of in-home “personal care” or “adult companion” hours — when attendants fed or bathed them. Last year’s service cuts capped the weekly combined number of hours at 28, said Patricia Harrison, the plaintiffs’ attorney.

That figure did not cover the total number of hours physicians for Harrison’s clients had recommended, up to 56 a week.

Harrison has said in-home care costs the state far less than the 24-hour-a-day care her clients would get in institutions.

The state spends an average of $32 a day to serve a person with disabilities in the community compared with about $127 a day to serve someone in an institution, according to figures from the Department of Health and Human Services.