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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION CIVIL CASE NO. 6-10-CV-767-JMC-JDA Peter B., Jimmy “Chip” E., and Michelle M.,
Plaintiffs, vs. Marshall C. Sanford, Nikki Randhawa Haley, Anthony Keck, Beverly Buscemi, Kelly Floyd, Richard Huntress, the South Carolina Department of Health and Human Services and the South Carolina Department of Disabilities and Special Needs,
Defendants. ______________________________________
Amended Complaint ______________________________________
Peter B., Jimmy “Chip” E. and Michelle M. (hereinafter referred to as the (“Plaintiffs”) complaining of the Defendants herein, allege the following:
INTRODUCTION 1. This civil rights action seeks declaratory and injunctive relief to prevent persons who
have severe disabilities from being forced into congregate living facilities, at a significantly greater cost to the State, instead of providing them with services in the least restrictive setting, which is their homes and communities. 2. The Defendants have taken actions which contravene federal law in a number of ways. Changes in the way the South Carolina Department of Disabilities and Special Needs (SCDDSN) and the South Carolina Department of Health and Human Services (SCDHHS) provide services through the Mental Retardation/Related Disabilities
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Medicaid waiver program, have violated the Americans with Disabilities Act of 1990, 42 U.S.C. § 12312 and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Section 504"), thereby placing waiver participants at imminent risk of unnecessary and unwarranted out-of-home and out-of-community placement, including the risk of placement in institutions such as nursing homes, ICF/MR facilities, boarding homes and group homes, and by discriminating against the plaintiffs on the basis of disability. 3. Defendants have also violated the requirements of Title XIX of the Social Security Act, 42 U.S.C. § 1396 et. seq. (“the Medicaid Act”) which require States to (1) provide comparable Medicaid services to individuals with similar needs; (2) provide services in sufficient amount, duration and scope; (3) provide services according to reasonable standards; (4) provide services with reasonable promptness; (5) provide services from the participant’s choice of providers; (6) inform waiver participants of all feasible alternatives under the waiver and (7) assure the federal government that the health and welfare of waiver participants is protected. 4. Defendants have also violated Plaintiffs’ Constitutional due process rights by denying their requests for fair hearings. 42 U.S.C. § 1396a(a)(3) and 42 U.S.C. § 431. 5. At all times relevant to this action, Defendants have acted under color of state law.
JURISDICTION AND VENUE 6. This is an action for declaratory and injunctive relief for violation of the Supremacy
Clause contained in Article VI of the United States Constitution and the Due Process Clause of the Fourteenth Amendment to the United States Constitution; Title XIX of
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the Social Security Act, (the “Medicaid Act”), (42 U.S.C. § 1396 et seq.); Title II of the Americans with Disabilities Act (the “ADA”); Section 504 of the Rehabilitation Act of 1973 (“Section 504"), (29 U.S.C. § 794); and 42 U.S.C. §§ 1983 and 1988 of the Civil Rights Act. 7. Plaintiffs’ causes of action for violation of the Medicaid Act are authorized by 42 U.S.C. §§ 1396a(a)(3) (due process), 1396a(a)(8) (reasonable promptness); 1396a(a)(10) (sufficiency); 1396a(a)(17) (reasonable standards); 1396a(a)(23) (choice of provider); 1396a(a)(30) (equal access and adequate payment rates) and 42 C.F.R. § 441.302 (assurance of protecting health and welfare and financial accountability of waiver participants). 8. This Court has jurisdiction over Plaintiffs’ claims under 28 U.S.C. 1331 and 1343(a)(3) and (4), Title II of the ADA (42 U.S.C. § 12132), Section 504 (29 U.S.C. § 794) and 28 U.S.C. § 1343 (deprivation of civil rights). 9. Declaratory and injunctive relief is authorized by 28 U.S.C. §§ 2201 and 2202 and Fed. R. Civ. P. 65. 10. Venue is proper because a substantial part of the actions and omissions of which Plaintiffs complain occurred in this Division. 28 U.S.C. § 1391(b).
THE DEFENDANTS 11. Marshall C. Sanford is the former Governor of South Carolina. He is sued in his
individual capacity. As “the supreme executive authority” and “chief magistrate” of South Carolina, the former Governor had a duty to “take care that the laws be faithfully executed.” He was responsible for directing, supervising and controlling the
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South Carolina Department of Health and Human Services (SCDHHS) and all long term care programs for persons who have disabilities. 42 C.F.R. § 430.12. 12. Defendant Sanford acted in his official capacity as Governor and was at all times during his terms in the Governor’s Office clothed with the authority of that office. 13. Defendant Sanford should be held by this Court to be personally responsible to the Plaintiffs because he exceeded the authority of his office in causing funds to be diverted which were intended to provide services to the Plaintiffs and other disabled persons. 14. Plaintiffs will show that beginning in 2002 and throughout his two terms in office, Governor Sanford and his Chiefs of Staff were informed by advocates, SCDDSN Commissioners and one or more agency officials about ongoing violations of the civil rights of waiver participants, violations of the Medicaid Act and the misappropriation of funds intended to provide waiver services and that Governor Sanford failed to exercise his power to correct and prevent these violations. 15. These violations have repeatedly been confirmed by audits conducted by state and federal authorities during Defendant Sanford’s terms as Governor, as well as by private auditors hired by SCDHHS, whose director is appointed by the Governor. These reports document that Plaintiffs have been placed at serious risk of harm if they have been threatened with bing forced against their wills into ICF/MR, CRCF (Community Residential Care Facilities), group homes, foster homes or workshops under the supervision of Defendants due to the failure to provide needed supports in the community. 16. These violations continued in part because of the Governor’s failure to comply with
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South Carolina Code of Laws § 44-20-225, which required the Governor to appoint three consumer advisory boards of SCDDSN. Former Governor Sanford failed to appoint these boards despite repeated requests from advocates and former SCDDSN Commissioners. 17. Defendant Sanford prevented public review of actions taken by SCDDSN and ignored or failed to respond appropriately to reports made to his office of financial mismanagement and violations of federal law, which resulted in funds intended to provide waiver services being diverted for other purposes. 18. Nikki Randhawa Haley is sued in her official capacity as Governor of South Carolina. She is automatically substituted for the former Governor only in his official capacity and he remains as a defendant in his individual capacity. The Governor of South Carolina has the authority to appoint and remove members of the governing board of SCDDSN. South Carolina Code of Laws § 44-20-210. 19. According to the Attorney General of South Carolina, the Governor is also the appointing authority for the governing boards of local disabilities and special needs boards and he has the authority to remove members of the governing boards of those agencies. Opinion No. 06-005 of the South Carolina Attorney General. 20. Anthony Keck is the current director of the South Carolina Department of Health and Human Services. He is sued only in his official capacity, at this time, as director of the cabinet level agency responsible for the administration of all Medicaid programs. 21. Beverly Buscemi has served since November 2009 as the Director of the South Carolina Department of Disabilities and Special Needs. She is responsible for the
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administration of the policies and regulations established by the Commissioners of SCDDSN, who are appointed by the Governor. She is responsible for providing accurate information to SCDDSN Commissioners and to the South Carolina General Assembly in order to allow them to make informed decisions about waiver programs. Dr. Buscemi is sued in her individual and official capacities. 22. Kelly Floyd is the former Chairman of the Commission of the South Carolina Department of Disabilities and Special Needs, which is the governing board of the agency. She was personally involved in the decision to reduce and terminate waiver services. Ms. Floyd is sued in her individual and official capacities. 23. Richard Huntress is the current Chairman of the Commission of the South Carolina Department of Disabilities and Special Needs and he is sued in his individual and official capacities. He also was personally involved in the decision to reduce and terminate waiver services. 24. Defendants are or were (in the case of Sanford) charged with the responsibility of protecting the civil rights of waiver participants and with complying with all federal laws related to the Medicaid program, including assuring compliance with the ADA and Section 504 and 42 U.S.C. § 1396 et. seq. (the Medicaid Act). 25. As a condition of accepting matching Medicaid funds from the federal government, Defendants Sanford, Haley, Keck and Buscemi assured the federal government that they have taken necessary safeguards to protect the health and welfare of Medicaid waiver participants who receive services in their homes and communities. 42 C.F.R. § 441.302. 26. The South Carolina Department of Health and Human Services (“SCDHHS”) is
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the agency that is responsible for the administration of all Medicaid programs in South Carolina. 42 C.F.R. § 431.10. SCDHHS contracts with SCDDSN to operate the MR/RD Medicaid waiver, but SCDHHS has a non-delegable duty to issue policies, rules and regulations on all program matters. 27. The South Carolina Department of Disabilities and Special Needs is the agency with responsibility for providing services to persons who have mental retardation, related disabilities, such as cerebral palsy and epilepsy, and autism, as well as head and spinal cord injuries. Under South Carolina Code of Laws §44-20-250, SCDDSN has the responsibility to coordinate services and programs with other state and local agencies for persons with mental retardation, related disabilities, head injuries, and spinal cord injuries. 28. Section 44-20-375 of the South Carolina Code of Laws establishes local county boards of disabilities and special needs (DSN Boards) by ordinance of local governing bodies. There are approximately 39 local disability and special needs (DSN) boards in South Carolina. 29. SCDDSN, SCDHHS and the Office of the Governor improperly recognize three private corporations, the Babcock Center, Inc., the Charles Lea Center, Inc. and Berkeley Citizens, Inc., as local DSN Boards, although they are not public entities, a statutory requirement to be a DSN boards South Carolina Code of Laws §§ 44-20375 to 385. 30. The appointing authority for local DSN Boards, according to the Office of the South Carolina Attorney General is the Governor, who also has the power to conduct removal proceedings to remove members of local DSN Boards. Op. No. 06-005.
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THE PLAINTIFFS 31. Plaintiffs are persons who have severe disabilities who participate in the MR/RD
Medicaid waiver program. The MR/RD Medicaid waiver is a program specifically targeted to provide services to persons who have mental retardation or a related disability, such as cerebral palsy or epilepsy. 32. Plaintiffs are at risk of institutionalization due to actions taken by SCDDSN which have been taken in violation of the ADA, Section 504, the ARRA, the Medicaid Act, 42 U.S.C. § 1396 et seq. and the Civil Rights Act. 33. Peter B. and Michelle M. are represented in this matter through their Guardian Ad Litem, Sandra Ray. Chip E. has profound physical disabilities, but he does not have mental deficiencies and he is not represented by a guardian ad litem in this action. 34. Peter B. is a 43 year old citizen of South Carolina who lives in an apartment in Spartanburg, South Carolina. Peter has moderate mental retardation, hydrocephalus, diabetes, coronary heart disease an anxiety disorder and a history of stress induced seizures. 35. Peter formerly lived in an ICF/MR funded and supervised by SCDDSN, but in 1989, when he was 22 years old, SCDDSN determined that Peter could be served in the community and Peter was moved to an apartment supervised by the Charles Lea Center. 36. These services are provided as part of the Supervised Living Program (SLP II). 37. Peter’s condition deteriorated when he was moved from the ICF/MR to this apartment and he experienced a serious loss of weight, depression and seizures when he was receiving “residential habilitation services” provided by the Charles Lea
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Center. 38. Because of the regression in his mental and physical health after discharge from the
ICF/MR, in 1994 Peter began receiving services of an adult companion, funded through the MR/RD Medicaid waiver. This companion inventoried his food supply, assisted him in preparing a grocery list containing foods on a specially prepared diabetic diet, assisted him in planning activities, including physical exercise, when he does not work and accompanied him on activities away from his apartment complex on the weekends. 39. After these companion services were started, Peter’s condition improved dramatically. 40. Peter has worked at the same job for more than twenty-one years. He works four days a week, but he receives limited exercise at his job site. His companion assured that Peter received the physical exercise his doctor has ordered on the weekends and he worked with Peter to increase his social and community integration skills, which improved his mental health status. 41. Once Peter began receiving these companion services, he adapted well to this less restrictive setting, fully participating in the life of his community. His level of anxiety and depression decreased with these services in place and his compliance with his diabetic diet improved. 42. Peter’s guardian filed a civil rights complaint against the Charles Lea Center with the Office for Civil Rights, United States Department of Health and Human Services. This complaint resulted in a 2001 audit which substantiated his guardian’s complaints that the Charles Lea Center had improperly charged Peter $7,697 in transportation
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expenses which had been paid by Medicaid. That audit identified other problems in the operation of the Charles Lea Center Supervised Living Program. 43. As a result of this complaint, the Charles Lea Center was required to repay Peter for these transportation services which had been reimbursed by Medicaid. The Charles Lea Center made the last payment in satisfaction of this debt to Peter in December 2004. In resolution of Peter’s complaint, the Charles Lea Center also entered an agreement signed on May 10, 2002. This legal agreement required the Charles Lea Center to comply with a Financial Management Plan obligating the Charles Lea Center to provide Peter tickets to community events. 44. Soon after the last payment was made, a Charles Lea Center employee who has no medical training, determined without consulting Peter’s physicians or obtaining any medical opinion, that Peter no longer needed these companion services. 45. Peter’s neurologist and internal medicine physician both determined that Peter’s condition would deteriorate without these companion services. 46. SCDDSN and SCDHHS upheld the decision of Charles Lea Center staff to terminate these services, without consulting Peter’s treating physicians and without obtaining a medical opinion of his need for these services, which had been funded by Medicaid. 47. SCDHHS bills Medicaid and pays SCDDSN more than double the actual cost of Peter’s MR/RD waiver services (including the companion services). 48. In 2005, Peter’s MR/RD waiver services (including 12 hours a week of companion services) actually cost about $24,000.00 a year, while ICF/MR services would have cost the State more than $100,000.00 a year. During 2005, SCDDSN billed and actually received payment (from Medicaid, including the state match) of more than
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$50,000.00 for Peter’s residential services, under his name and social security number. 49. SCDDSN allows the Charles Lea Center to retain these “unspent” funds and to spend them for other purposes in the discretion of the Charles Lea Center. 50. According to the first notice of intent to terminate these services, the director of the Charles Lea Center informed Peter’s companion that these services were being terminated because the Center was operating in the red in 2005. He informed Peter’s guardian that the Charles Lea Center could no longer afford to continue Peter’s companion services. 51. Peter’s physicians disagreed with the assessment of the Charles Lea Center employee who determined his companion services are not necessary. Based on many years of treating Peter, these physicians determined that Peter’s general neurological and mental health would deteriorate if these services were terminated. 52. In 2005, Peter’s guardian appealed the proposed termination of these 12 hours a week of companion services and he requested that 12 hours a week of Adult Companion Services be provided as ordered by his physicians. 53. The SCDHHS hearing officer dismissed Peter’s fair hearing appeal a year later, finding that SCDHHS is without jurisdiction to hear his case. The hearing officer determined that Peter did not have a right to receive a fair hearing on the termination of these companion services because SCDDSN and SCDHHS argued that those services were not funded by Medicaid. The South Carolina Court of Appeals reversed and remanded the decision of the SCDHHS hearing officer and remanded his appeal to SCDHHS.
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54. Peter’s guardian visited the Regional Offices of CMS (the federal Medicaid Agency) and the Office of Civil Rights in Atlanta in July 2009, complaining about SCDDSN and the Charles Lea Center violating the civil rights of Peter and other MR/RD Medicaid waiver participants.
55. Although Defendants had agreed during the fair hearing proceedings to continue to provide Peter 12 hours a week of companion services during the appeal and the SCDHHS hearing officer ordered these services to be continued during the appeal, SCDDSN terminated these twelve hours of companion services in July 2009, while Peter’s appeal was still pending.
56. Although the Charles Lea Center decided to terminate Peter’s services in 2005 because of claims of budget deficits, in 2007, during this time, the agency subsequently spent more than $2 million purchasing and renovating a large industrial building located on a Superfund site which was previously owned by Tyco Corporation.
57. When SCDDSN provided funds to the Charles Lea Center to purchase this property, it contained unsafe levels of groundwater contamination.
58. Deed restrictions prohibited the property from being used for human habitation, a nursing facility or a school, or even grazing cattle. Although these deed restrictions have not been lifted, the South Carolina Department of Health and Environmental Control approved using the property, which could not be used as a school or hospital, as an “industrial site.”
59. Now approximately 300 people who have disabilities are sent to the workshop on this Superfund site, where they perform work in windowless rooms, isolated and 12

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segregated from non-disabled persons. 60. According to an audit conducted by the South Carolina Legislative Audit Council,
during FY 06 and FY 07, SCDDSN spent more than $20 million of funds allocated for waiver services by the General Assembly for other purposes. December 3, 2008 audit of SCDDSN by the South Carolina Legislative Audit Council. 61. Because these funds were not spent providing Medicaid waiver services, more than $60 million of federal matching funds were lost. 62. In May 2009, upon information and belief, Emma Forkner, the director of DHHS and Defendant Sanford caused a proviso to be passed in the FY 2010 South Carolina Budget Act which requires “revenues” from labor of “mentally retarded trainees” in this and other SCDDSN workshops to be paid to SCDDSN. 63. Upon information and belief, many persons who have disabilities have been taken out of competitive employment, where they worked alongside non-disabled persons, and they have been sent to the Charles Lea Center “Workability” workshop in order to increase the “revenues” paid to SCDDSN. 64. Peter does not attend this segregated workshop and he does not to want spend his days in this setting where he would be isolated from non-disabled people. 65. It is undisputed that SCDDSN would pay for Peter to attend this congregate, segregated workshop, simultaneously with “residential habilitation” services. 66. The Adult Companion Services Peter received for more than a dozen years cost less than the cost of Peter attending this congregate, segregated workshop. 67. Assaults and workplace violence are prevalent at SCDDSN sheltered workshops but people who do not have disabilities are not expected to tolerate threats of harm from
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co-workers, unlike those persons who attend these workshops. 68. Upon information and belief, persons who have disabilities who labor at the
SCDDSN workshops receive less compensation than Peter earns at his job, where he is competitively employed. 69. Peter lost more than 11 pounds since his companion services were terminated in July 2009 and his general physical and mental condition have deteriorated significantly. 70. He has exhibited signs of depression and anxiety, which were present before these companion services were provided, but abated while he was receiving 12 hours a week of companion services. 71. If Peter’s mental and physical health continue to deteriorate, according to his treating physician and psychologist, he will be unable to retain this job in the community and the loss of his job will be a tremendous emotional loss for Peter. 72. Peter’s treating physicians warned SCDDSN that the termination of his companion services would be likely to cause “a downturn in his general and neurological health with resultant increased medical needs and expenses.” Their predictions were correct. 73. This service is needed to assure that Peter consumes the 2,500 calories which have been prescribed by his physician. Peter is no longer receiving regular exercise, which his physicians have determined is necessary to prevent regression and deterioration of his physical and neurological condition. 74. Peter’s anxiety increased after his companion services were terminated in July 2009 and his psychological services provider has determined that he is at great risk of psychological decompensation. His depression has increased since these services have been terminated.
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75. Because of the termination of Peter’s companion, his needs are inconsistently met by untrained staff who are frequently unavailable. This lack of knowledgeable, available staff has escalated his physical and emotional problems.
76. Peter’s psychological services provider believes that Peter will have to move to a more restrictive congregate setting if this decline in his condition continues.
77. Peter’s provider of psychological services was also terminated by DDSN after being named as a witness in this case. (Her appeal is pending before the South Carolina Administrative Law Court and she has filed a lawsuit alleging reprisal.)
78. Peter has been placed at risk of harm due to the termination of twelve hours a week of adult companion services and he risks placement in an isolated congregate facility because his medical needs are not being met due to the loss of these services.
79. Peter is at risk of having to move to a more restrictive and costly setting, in a residence with other disabled persons. Peter would be required to comply with house rules and schedules not chosen by him. He would not be able to choose his foods, his bedtime, when he eats or what television program to watch. His outings into the community would consist for the most part of traveling with other residents in a van and attending the events chosen by the staff or the group.
80. Peter is entitled to receive services in the least restrictive setting, where he is treated as a valued citizen and is fully integrated into the life of the community.
81. These Adult Companion Services may be provided without a fundamental alteration in the nature of the State’s system.
82. Defendants have failed to give deference to Peter’s treating physicians in making treatment decisions and his health has declined, as they predicted since these services 15

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were terminated. Olmstead v. L.C., 527 U.S. 581 (1999). 83. Despite evidence of medical necessity of these services and the lower cost of these
Adult Companion Services when compared with the cost of attending the workshop, SCDDSN has refused to voluntarily restore these services during this litigation. 84. In retaliation for her advocacy for Peter and his satisfaction with her services, Peter’s long time independent service coordinator was terminated after she was named as a witness in this case and the Deputy Director of DDSN provided Peter’s service coordination records to another private provider, in violation of HIPAA, after Peter’s guardian informed Defendants that she exercised his right not to receive service coordination services (targeted case management). 85. Chip E. is 38 year old citizen of South Carolina who resides in his family home in Clinton, South Carolina. Chip has normal intelligence, but he has severe cerebral palsy and he uses a wheelchair for locomotion. Chip can control his wheelchair with his mouth, but he has no use of his arms or his legs. He requires hands-on assistance with bathing, dressing, eating and every other activity of daily living. His vision is impaired. 86. Chip is 6 feet tall and he weighs 185 pounds. He is completely unable to assist his caregiver with moving from his bed to his wheelchair. His speech is impaired so that only those persons who know Chip well can understand what he says. 87. Chip meets all medical and financial qualifications to receive services, at taxpayer expense, in an ICF/MR, the most expensive services provided by SCDDSN. If Chip exercised his right provided by 42 U.S.C. § 1396n(c)(2)(C) to receive ICF/MR services, federal law would require the State to provide these more expensive
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institutional services with “reasonable promptness.” 42 U.S.C. § 1396a(a)(8). 88. Chip is an important and valued member of the Clinton High School Football team,
which he coaches as a volunteer. Chip attends every home and away game and he has not missed coaching a game in more than 19 years. He proudly wears the gold ring he earned when his team won the State Football Championship last year. 89. Every week, Chip uses his computer to write an inspirational letter to the team, which the coach reads to the team before the game. Chip prepares plays during the week which he sends by e mail to the head coach. The Clinton High School football team won the State Championship in 2009 using one of Chip’s plays. 90. In November 2009, the director of the Laurens County DSN Board sent a generic notice to waiver participants in Laurens County saying that SCDDSN intended to impose a cap on PCA services of 28 hours a week. This letter stated that SCDDSN was imposing a cap on respite hours of 68 hours a month. The letter, which was not addressed individually to Chip, states that “Receiving this notice does not mean your services are being reduced.” These changes were scheduled to become effective on January 1, 2010 and the letter informed waiver participants that each waiver participant would be notified individually by their service coordinator before any services were reduced. 91. The reason given for reducing these services was “significant shortfalls in revenue.” According to the notice: “These revenue shortfalls have created budget reductions in every area of the state, including the Department of Disabilities and Special Needs.” This letter did not refer to any regulation or law authorizing this reduction in services. 92. On December 30, 2009, Chip’s service coordinator sent a letter to Chip informing
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him that if he appealed the reduction of his services, he would be personally responsible for the cost of these services if he lost his appeal. As before, no reference to a regulation or law was contained in this notice of reduction in services. 93. Since Defendants decided to reduce these services, tens of millions of dollars of federal stimulus funds received by SCDDSN since February 2009 have been paid to a rainy day fund, instead of using those funds to maintain services required by waiver participants to allow waiver participants to remain in their homes. 94. These waiver program amendments described in the generic letter from the DSN Board were first approved by the South Carolina Department of Health and Human Services Medical Care Advisory Committee in May 2009, without giving prior notice to the public, local DSN Boards or even to SCDDSN Commissioners. 95. Defendants failed to conduct an economic analysis to determine the cost effectiveness of reducing home-based waiver services before approving these amendments to the MR/RD Medicaid waiver program. 96. Defendants failed to conduct an individualized assessment of medical need before deciding to reduce home based waiver services. 97. Despite approving these reductions based on claims of “budget reductions,” Defendants actually increased the reimbursement rate SCDDSN pays to itself and to its local DSN Boards for providing ICF/MR services from $157 a day to $270 per day. 98. ICF/MR facilities are nursing facilities for persons who have mental retardation or a related condition and they are the most expensive and restrictive setting in the SCDDSN system.
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99. Former Governor Sanford’s proposed budget for FY 2010 increased the amount provided for institutional services (ICF/MR) by more than a million dollars a year, while significantly reducing funding for home-based services.
100. Since that time, Defendant Sanford, and later Defendant Keck, have further reduced funding for home and community-based Medicaid services while maintaining or increasing amounts paid for institutional and congregate services..
101. When Chip’s service coordinator informed him about the amendments to the MR/RD Medicaid waiver program services, she told him that it would be futile to appeal these reductions. Later Chip learned that he was entitled to appeal those reductions and he filed an appeal with SCDDSN.
102. Without providing the requested evidentiary hearing, on January 11, 2010, Dr. Buscemi responded to his appeal by upholding the reduction in Chip’s PCA services. However, she overruled the reduction of his respite services. This letter failed to cite any rule, regulation or other legal basis for this denial/reduction and it does not inform Chip that receiving 240 hours a month of respite services is a “feasible alternative” under the waiver program.
103. Despite Chip requiring assistance with every activity of daily living and a finding by Dr. Buscemi that Chip is “severely disabled,” SCDDSN never conducted a medical assessment to determine whether Chip needed the maximum number of respite hours (240 a month) nor did Dr. Buscemi’s letter inform him of the right under the new SCDDSN policy to receive up to 240 hours of respite services a month.
104. When Chip attempted to appeal Dr. Buscemi’s decision to SCDHHS, instead of providing a fair hearing, the hearing officer issued an “Interlocutory Order” requiring 19

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Chip to prove an “error of fact or law.” 105. Although discovery is not allowed in fair hearing appeals, Chip responded to the
notice by asking the hearing officer to schedule a fair hearing. 106. Instead of providing Chip a hearing, on April 29, 2010 (more than 90 days after Chip
requested a fair hearing), the hearing officer dismissed Chip’s appeal without providing a fair hearing and that order is currently on appeal to the South Carolina Administrative Law Court. 107. Chip has been unable to use the respite hours that have been awarded because of the administrative barriers imposed by SCDDSN and the local DSN Board and the low rate of pay paid to respite caregivers. 108. Chip’s personal care attendant arrives at his home in the morning and he is confined to his bed until she arrives. His personal care attendant bathes and dresses Chip. She assists Chip with the toilet, then prepares and feeds Chip breakfast. This process takes at least two-and a half hours, when Chip is well. He needs additional care when he is ill. This personal care attendant drives Chip to medical appointments and feeds him lunch before leaving his house. 109. In the evening, some nights Chip’s uncle is around and will put him into the bed. Other nights, Chip sleeps in his wheelchair, because his father cannot lift him safely from his wheelchair to his bed. 110. Chip’s family is no longer able to care for him. After willingly providing for his care in the family home for more than thirty years, his parents became physically unable to provide the care he needs to remain outside of an institution. 111. Chip’s mother died in June 2010 and his father was hospitalized in July 2010.
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112. Due to impaired mobility, Chip is at greater risk of pressure sores and other medical complications if his home-based services are reduced. Federal and state governments spend billions of dollars to treat complications of pressure sores every year.
113. In the likely event that Chip will develop pressure sores from having to sleep in his wheelchair without being repositioned regularly, he will require more expensive acute care, at significantly greater costs to taxpayers.
114. The State can provide Chip with services he has requested in his own home without fundamentally altering the nature of the State’s system by simply providing reasonable modifications to its programs that are less costly than ICF/MR services which Chip is entitled to receive.
115. Chip’s services at home cost less than his care would cost if he were forced to move to an institution and Chip’s biggest fear in life is being forced to move to an institution.
116. Defendants have not provided the fair hearing Chip has requested, which is required by 42 U.S.C. § 1396a(a)(3).
117. Forcing Chip into an institution not only would be a tragedy for Chip, but it would be a huge personal loss for other citizens of the Clinton community, who place great value on his contribution to the life of the community.
118. Chip is at immediate risk of being institutionalized if an injunction is not granted. If Chip were placed in an institution, he would be segregated and isolated from his family, friends and colleagues for extended periods of time. Chip would be at risk of being forced to leave his home community, because there are no beds available in Clinton. 21

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119. Chip would likely be forced to live in a facility with persons who have cognitive disabilities who have mental health and behavioral challenges, where he would be stigmatized by the public due to his disability.
120. If Chip were forced to move to a congregate facility, he would not be secure in his personal possessions. He would be subjected to daily assaults on his right to privacy and basic human dignity.
121. Chip would no longer have the right to select and hire persons who assist him with activities of daily living of a most personal nature. Those decisions would be made by bureaucrats. Chip would be subjected to having strangers, not chosen by him, to touch him, bathe, dress and feed him. He would be dependent upon persons hired by someone else to come into and out of his room at all hours of the night and day. He would be dependent upon staff to provide intimate physical care. He would have to eat the foods chosen by someone else on a schedule they determine. He would be required to go to sleep and wake up on a schedule convenient to staff. He would be subjected to watching the television programs chosen by others, with his only option to retreat into his bedroom in the facility where he could not even shut the door without the assistance of facility staff.
122. Most likely Chip would be required to attend a SCDDSN funded congregate workshop during the day if he was moved to an institution, where “revenues” from his work would be paid to SCDDSN. Section 24.1, Part 1B, South Carolina Budget Act for 2010-1011.
123. Non-disabled persons would consider such restrictions stigmatizing and a clear violation of their rights to privacy and self-determination. 22

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124. With reasonable modifications, Chip can be served at less cost in his home or another independent setting where he will not be isolated from his family, friends and his colleagues who work with the Clinton High School football team.
125. Chip is at risk of immediate institutionalization, however, he is entitled under the ADA, Section 504 and the findings of the United States Supreme Court in Olmstead v.L.C. to receive services in his own community, outside of an institutional setting, with great deference provided to the treatment decisions of his responsible, treating physicians. Olmstead v. L.C., 527 U.S. 581 (1999).
126. For months in 2009, Chip was unable to use the allocated respite hours because SCDDSN requires respite providers to attend training without being compensated and requires respite workers to provide background documentation at their own expense. SCDDSN caregivers who work in institutional settings are paid to attend training and the agency pays for documentation, such as SLED and driving records. Employees of SCDDSN institutional facilities (Regional Centers) and the Laurens County DSN Board receive Worker’s Compensation and Unemployment benefits, sick and annual leave and health insurance. Respite workers do not receive these same benefits and they are paid a lower hourly rate than caregivers who work in congregate SCDDSN funded facilities.
127. After Chip’s mother died, SCDDSN agreed to provide 240 hours a month of respite services, however, the Laurens DSN Board denied Chip’s request for the higher “difficulty of care” rate because its service coordinator determined that his disabilities are not severe enough.
128. PCA services are provided by private providers of MR/RD Medicaid waiver services 23

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and there are a number of companies from which the waiver participant may choose. PCA providers are required to provide Worker’s Compensation and Unemployment befits to caregivers. 129. The Laurens DSN Board does not provide waiver participants with a list of respite providers and the waiver participant must locate his own potential respite workers. Respite workers are not paid through the waiver until they receive training from the local DSN Board. This training is scheduled as determined by the DSN Board and respite caregivers are not paid to attend this training, but employees of DDSN Regional Centers are paid to attend mandatory training. 130. Until recently, the DSN Boards did not pay fica taxes on salaries paid to respite workers, requiring them to pay both the employer’s share and the employee share. Salaries paid to respite workers are lower than those paid to caregivers working in congregate SCDDSN facilities. 131. Defendants have not informed waiver participants that no liability coverage is provided for respite workers or that respite workers injured on the job have been instructed to file liability, Worker’s Compensation or Unemployment claims against the waiver participant and/or his family. 132. According to SCDDSN, neither the local DSN board or the state agency have responsibility for injury caused by a respite caregiver, even intentional injury, because SCDDSN claims that respite caregivers are independent contractors or that they are employees of the family. 133. Defendants do not require local DSN Boards to provide Worker’s Compensation or Unemployment benefits to respite workers, although these benefits, along with annual
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and sick leave and health insurance, are provided to caregivers working in congregate SCDDSN facilities. 134. Defendants never informed Chip about the availability of adult companion services as a feasible alternative or Medicaid funded assistive communications services and equipment which would allow him to communicate with others using an augmentative communications device. 135. Plans of care are prepared by service coordinators. Most service coordinators work for local DSN Boards, however, a SCDDSN has included a few private providers of service coordination services on its QPL (Qualified Provider List). 136. The Medicaid Act requires Defendants to provide all Medicaid covered services which are medically necessary and are contained in the plan of care. 137. Defendants failed to explain to Chip that he has the right to choose a service coordinator who is not employed by the Laurens County DSN Board and he was never informed of all “feasible alternatives” under the waiver program and when Chip chose an independent service coordinator, DDSN terminated that person as a provider. 138. When Chip attempted to exercise his right of choice of service coordinators under 42 U.S.C. §1396a(a)(23), DDSN “froze” her from accepting new clients and later terminated her contract as a provider under the MR/RD Medicaid waiver. 139. Michelle M. is a 37 year old citizen of South Carolina who resides in Clinton, South Carolina, where she lives in the home of her aging parents. 140. Michelle has profound mental retardation, autism, severe physical disabilities, including a severe seizure disorder and Parkinson’s disease. She as been diagnosed as
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having reflux and a sleep disorder. Michelle has an IQ of 15 and an adaptive score of a two year old child. She is non-verbal and receives nutrition and medications through a gastrostomy tube and is incontinent of bowel and bladder. 141. Michelle is a beautiful, delicate woman who looks much younger than her age. She weighs 135 pounds now, but when Michelle lived in an institution, her weight dropped below 80 pounds. 142. Prior to the changes in the MR/RD Medicaid waiver program which went into effect on January 1, 2010, Michelle received 8 hours a day of personal care attendant services at home and 28 hours a week of respite services. Defendants reduced Michelle’s authorization for personal care attendant services to 4 hours a day because of the limitations which went into place on January 1, 2010. Michelle’s services are being continued pending her administrative appeal. Michelle will require immediate institutionalization in the event that her services are reduced. 143. Michelle’s parents want to keep her at home and do not want to have to return her to a Regional Center operated by the State, where she would be isolated from her friends and family. 144. Michelle was a “normal” child until she was four months old. Her parents were awakened one night to a “horrifying” scream and Michelle began convulsing. Her brain was damaged due to a grand mal seizure and she lost the ability to speak. 145. Michelle was six years old before she learned to walk, a skill that has been largely lost as she has aged. Now she walks only with hands-on assistance. She has to be watched constantly because she is at risk of falling. 146. Michelle sometimes pulls out her gastronomy tube when she attempts to get out of
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her geri-chair. Without one-on-one supervision she receives at home, Michelle would have to be tied to her chair with a seat belt. 147. Such restraint would increase her anxiety level and would likely lead to a deterioration in her mental health. 148. After her mother suffered a stroke, Michelle was admitted at age 15 to Whitten Center, a large ICF/MR (Intermediate Care Facility/Mental Retardation) Regional Center operated by the State of South Carolina. 149. Michelle was institutionalized at the Regional Center because her parents could no longer afford to pay for her care at home without additional supports. 150. Michelle received many “unexplained” injuries while living at Whitten Center. Her teeth were knocked out when Michelle “fell” and she has scars on her neck and side from being “clawed.” Her finger was broken and her parents were not provided with a logical explanation for the injury. When Michelle’s toe was broken, her parents found nail prints from someone’s hand on her foot. 151. The United States Department of Justice initiated an investigation at Whitten Center in 1994 after receiving reports of residents being left unattended and sitting in their own urine and feces for hours and ten unexplained resident deaths. 152. Michelle’s parents were not informed of these investigations which were being conducted by the Department of Justice, but they received a call from Whitten Center officials around 9:00 p.m. one night, asking that they remove Michelle from the facility immediately. 153. Whitten Center staff told her parents that Michelle was “grieving.” They told her parents that Michelle was not eating and she was not adjusting well to living at
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Whitten Center. SCDDSN asked her parents to take Michelle home, offering them incentives of promises of attendant care, respite and a stipend to remove Michelle from the ICF/MR Regional Center. 154. Michelle returned home in 1995 under the “What Will It Take Family Support Program.” 155. Under this program, SCDDSN promised Michelle’s parents that they would provide all needed supplies and services which she had received in the Regional Center. SCDDSN also promised her parents that they would pay for personal care services and that respite services would be provided two weeks a year and every other weekend, to give them a break from their caregiving duties. 156. Also through the “What Will It Take” program, in return for Michelle giving up her right to receive services in the Regional Center, SCDDSN promised to pay Michelle’s parents a $525 per month stipend to help provide for Michelle’s care at home. 157. Michelle’s mother experienced another stroke after Michelle returned home. Her father has congestive heart failure and atrial fibrillation, which has been aggravated due to the stress of the ongoing threats to reduce or eliminate Michelle’s services. 158. Michelle’s mother must be present in the home when Michelle eats (receiving nutrition through a tube in her stomach). Her mother has to be at home to administer Michelle’s medicine at 8 a.m., 1:30 p.m., 7 p.m., 10 p.m., 11 pm and midnight. Pursuant to SCDDSN policy, Michelle’s personal care attendant and respite caregiver are not allowed to perform these services. SCDDSN requires that her mother be present at each feeding and medication administration. This severely limits her
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mother’s ability to take care of her own personal needs. 159. The 8 hours a day of personal care services Michelle receives at home have allowed
her to remain in the least restrictive setting appropriate to meet her needs. These services provide someone to help Michelle’s mother to bathe, dress and toilet her. They allow her parents to attend to their own medical appointments and to run errands, like shopping for groceries, in between Michelle’s feedings. 160. Michelle’s mother sleeps in a recliner in her room at night, because Michelle requires constant monitoring during the night due to her seizure disorder. 161. Michelle was receiving “daily respite” services at home, which cost $70.00 per day. These services were eliminated with the January 1, 2010 amendments and this service was replaced with ICF/MR respite services costing $270.00 per day. 162. The last week of December 2009, SCDDSN called Michelle’s parents and informed them that, in addition to reducing Michelle’s personal care attendant services from eight hours a day to four hours a day, their $525 stipend, which DDSN paid Michelle’s parents for fifteen years, would be terminated “immediately.” 163. The Defendants failed to provide a written notice containing the reasons for the reductions and the regulation or statute authorizing the reduction. 164. After an article appeared on New Year’s Day, 2010, in the Greenville News about the termination of Michelle’s stipend, SCDDSN officials called Michelle’s parents that same day reversing its decision to eliminate her $525 per month stipend. SCDDSN officials informed her parents that afternoon that the stipend promised through the “What Will It Take” program would continue but her PCA services would still be reduced.
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165. On January 1, 2010, SCDDSN reduced Michelle’s personal care attendant services from eight hours a day to four hours a day due to claims of “budget reductions,” without citing a regulatory or statutory basis. These services are now being provided pending an administrative appeal to the South Carolina Administrative Law Court.
166. Michelle filed an appeal with SCDDSN requesting a fair hearing in January, when SCDDSN notified her parents that her personal care attendant services were being reduced to 28 hours, but Defendants have not provided her with a fair hearing as required by 42 U.S.C. § 1396a(a)(3).
167. Dr. Buscemi upheld the reduction in PCA services based on the caps approved effective January 1, 2010 without even performing an assessment to determine whether Michelle was entitled to the maximum number of respite hours allowed under the new cap.
168. After Michelle filed this appeal, the local DSN board at first informed Michelle’s mother that she would receive the maximum respite hours, but these hours have never been provided.
169. Michelle’s parents have both required hospitalizations due to their own deteriorating health. Without increased respite services, they will be unable to maintain the level of supervision and care Michelle needs at home in the event that either of them requires a hospital stay. They will have no option but to place her at a more restrictive, more expensive Regional Center for respite if her personal care attendant services are reduced and adequate in-home respite services are not provided.
170. Despite being informed that SCDDSN would provide the “maximum” number of respite hours (240 per month), Michelle’s respite hours were only increased by 2 30

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hours a week, to 30 hours a week. 171. When Dr. Buscemi upheld the agency decision to reduce Michelle’s hours, she filed
an appeal with SCDHHS. 172. Instead of providing a fair hearing, the hearing officer issued an “Interlocutory
Order” requiring Michelle to provide proof of an error by SCDHHS. 173. When Michelle responded to this Order, the hearing officer dismissed her appeal
without providing an opportunity for discovery or a fair hearing. 174. When they took Michelle out of the ICF/MR, Michelle’s parents relied in good faith
upon SCDDSN’s promises that they would provide 48 hours of respite services a week, in addition to two additional weeks of respite a year. This promise has been broken, placing Michelle at immediate risk of institutionalization. 175. The decision to limit Michelle’s personal care attendant hours to 28 hours a week and to provide only 30 hours a week of respite was made without contacting her treating physician or considering his opinions regarding her need for waiver services. 176. Michelle did not receive in a timely fashion the specialized sponges she needs to avoid infection of her stoma site, where stomach acid leaks out and irritates her skin. Michelle did not receive notice or an explanation of this termination of supplies which are necessary to maintain her health at home. These supplies would be provided if Michelle’s elected to exercise her right to receive more costly ICF/MR services. 177. Defendants have violated the integration mandate of the ADA and Section 504 by failing to provide services and supports which would be available to Michelle, at significantly greater cost, if she were to exercise her right to receive services in an
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ICF/MR. 178. Michelle’s parents will not have the stamina to feed, bathe, toilet and dress her if her
personal care attendant services are reduced. Furthermore, they will be unable to sleep or to leave the house to take care of their own physical and medical needs. Michelle will be at significant and immediate risk of returning to an ICF/MR. She would be isolated from her family and her community. 179. Michelle’s care can be provided in the home with reasonable modifications at a cost that is less than the cost of ICF/MR services. 180. Michelle is entitled to receive services in her own community, with great deference provided to the medical decisions of her responsible, treating physicians. Olmstead v. L.C., 527 U.S. 581 (1999). 181. Michelle is at immediate risk of institutionalization if an injunction is not issued by this Court.
FACTUAL BACKGROUND A. How MR/RD Medicaid waiver services are delivered in South Carolina. 182. Before 1981, the only residential services provided by SCDDSN that the federal
government would pay for were provided in institutional ICF/MR settings. (Intermediate Care Facilities/Mental Retardation are highly regulated nursing facilities for persons who have mental retardation or a related disability. Most of these services were operated by SCDDSN Regional Centers, like Whitten Center. 183. In 1981, Congress authorized the federal Medicaid Agency, CMS (formerly the United States Department of Health Care Finance Administration, or HCFA), to pay for services in individuals’ homes or other less restrictive settings outside of
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traditional institutional facilities. In South Carolina, these services are provided in individuals’ own homes, in group homes where four or fewer persons live together called Community Training Homes II (“CTH II”), in foster homes (Community Training Home I or “CTH I”) and in supervised apartment settings (Supervised Living Programs or “SLP”). 184. In 1999, the United States Supreme Court upheld the right of persons with disabilities to receive services in the least restrictive setting where they are fully integrated into the community. Olmstead, supra. On the tenth anniversary of this decision, President Obama and U.S. Secretary of Health and Human Services, Nancy Sebelius, declared 2009 the “Year of Community Living,” thereby affirming the goal of the Americans with Disabilities Act that people who have disabilities have meaningful choices to live and participate in the community. 185. 2010 was the 20th anniversary of the Americans with Disabilities Act. This Act has been called the “most sweeping civil rights legislation since the Civil Rights Act of 1964." Congressman Jerrold Nadler (D-NY), Chair of the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties. 186. Despite these commitments of the federal government to integrate persons who have disabilities into the mainstream of community living, South Carolina continues to divert a significant portion of its resources to maintaining the monopoly of SCDDSN and its system of local DSN Boards and to commit resources to providing services and infrastructure in the most segregated settings, ICF/MR facilities and, in particular, the Regional Centers. 187. Medicaid home and community based waiver programs allow states to waive only
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three Medicaid requirements: state-wideness, comparability of services, and community income and resource rules. States must comply with all other requirements of the Medicaid Act. States may elect to cover a limited number of individuals in a waiver program, may offer different groups different sets of services, may offer the services in only certain geographic locations, or may waive income deeming requirements so as to allow more individuals to be Medicaid eligible. Unless a specific Medicaid requirement is waived by CMS, the State must comply with all other Medicaid rules, regulations and statutes. 188. The federal agency that is responsible for all Medicaid programs is CMS, the “Centers for Medicare and Medicaid Services.” CMS provides SCDHHS with the federal matching funds for waiver programs. 189. SCDHHS contracts with SCDDSN to operate the MR/RD Medicaid waiver program. SCDDSN is governed by a seven member Commission appointed by the Governor and subject to removal by the Governor. 190. SCDDSN in turn contracts with local DSN Boards, which are paid prospectively for services on a “capitated” basis. Private providers of the services that were reduced or eliminated on January 1, 2010, on the other hand, must provide the services then wait for payment on a fee-for-service basis. 191. In most counties, DSN Boards are quasi-governmental agencies which plan and coordinate SCDDSN services in the county. In a few counties, such as Spartanburg, SCDDSN contracts with a private corporation, which is treated with preference as if it were a DSN Board, even though a legitimately appointed DSN Board exists in the County.
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192. Private and faith-based providers must compete to provide waiver services, but DSN Boards and the Charles Lea Center are paid a capitated rate prospectively while other private providers must provide the service, then bill the local Board for reimbursement.
193. DDSN allows the Charles Lea Center to provide both service coordination and direct waiver services, but it prohibits other private entities from providing both types of services.
194. Local DSN Boards and private corporations given preference like a DSN Board have a financial incentive to deny services, because they can spend a waiver participant’s “unspent” capitated payments as they choose.
B. Plaintiffs have relied in good faith on the promises of the State to provide services in the community and federal entitlements to receive services in the least restrictive setting.
195. SCDDSN began a major push during the mid-1990's to reduce the population at the Regional Centers by moving residents back to their homes and to less expensive alternative community placements. SCDDSN aggressively sought out families willing to accept the responsibility of taking their adult children back into their homes or moving their adult children into a more restrictive setting in order to depopulate the SCDDSN Regional Centers and other ICF/MR facilities. This was done by promising families extensive community services and supports. These families acted in good faith relying on the promises made by the State.
196. SCDDSN called the program “Whatever it Takes.” They enticed families to move their loved ones out of ICF/MR placements in Regional Centers by promising that the
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state would provide necessary services and supports in the community through the MR/RD Medicaid waiver program. Some parents were also promised stipends and other financial assistance for providing care in their homes for adult children who had been placed years before in state institutions. The State promised to do “whatever it takes” to move these individuals out of the institutions and into home and community based settings. 197. Another major cost-reduction plan was introduced by SCDDSN in 1998. Prior to that time, providers of waiver services billed Medicaid for each waiver service they provided, only after that specific service was provided. In 1998, SCDDSN began a three year conversion from this fee-for-service system to a managed care system, where local DSN Boards would be paid a “band” payment before services were delivered. The amount of each waiver participant’s band is based on where the individual lives, rather than being based on the waiver participant’s needs. A significantly lower band amount is provided for people who live at home, like Chip E. and Michelle M., or in a supervised apartment, like Peter B., regardless of the severity of their condition or their need for supervision and support. 198. When this managed care system was implemented, SCDDSN repeatedly assured families and consumers, in writing and in public meetings, that they would continue to receive the services and supports they were receiving on July 1, 1998, regardless of any subsequent needs assessment. SCDDSN provided assurances and promises that services provided on July 1, 1998 would be continued and not reduced, “if that was the choice” of the consumer and his/her family. 199. In reliance on promises of extensive community supports made by SCDDSN, Peter
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B. and Michelle M. gave up their ICF/MR placements to move into community settings. They were assured that waiver services would be provided in the amount, duration and scope necessary to meet the purposes of the MR/RD Medicaid waiver program, i.e. to maintain the health and welfare of waiver participants and to provide all services that are necessary to avoid or delay institutionalization. 42 U.S.C. § 441.302. These Plaintiffs were assured that their services would not be reduced below the level provided on July 1, 1998 and they relied to their detriment on these promises. C. Despite a national trend away from institutional services, South Carolina has violated the civil rights of the Plaintiffs by continuing to dedicate a disproportionate amount of the State’s resources to protect and maintain services in institutional or congregate settings. 200. Despite the large numbers of ICF/MR participants opting to move out of SCDDSN Regional Centers over the years in reliance on SCDDSN’s promises to provide and continue providing home and community supports, the proportional spending for services in these Regional Centers remains high. Although DDSN consumers living in Regional Centers account for less than 3% of the persons currently served by SCDDSN, in recent years the cost of operating the Regional Centers accounts for approximately 18% of the agency’s annual expenditures. The proportional spending for the Regional Center is likely to be higher this year for the Regional Centers since there will be little movement subsequent to SCDDSN’s reduction of home based services (in February, SCDDSN notified waiver participants living at home that it was considering terminating all home based waiver services, retaining only the residential services funded by the waiver).
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201. Prior to implementation of the January 1, 2010 amendments, SCDDSN estimated that only 30 individuals would have to resort to using ICF/MR facilities to provide respite services, according to the waiver document for the year ending in 2009.
202. SCDDSN reported that it expected this number to increase to 126 individuals having to resort to use ICF/MR respite services during the year beginning January 1, 2010.
203. Before these amendments went into effect on January 1, 2010, waiver participants averaged 22 days in ICF/MR respite facilities. With the recent waiver amendments, Defendants’ own estimates are that the average user would spend 33 days in institutional respite, a 50% increase in the number of respite days spent in an institution.
204. Despite claims that these waiver amendments were necessary because of major reductions in funding, Defendants also increased the reimbursement rate paid to SCDDSN and its local DSN Boards for ICF/MR respite services from $157.50 per day to $270.00 per day for 2010.
205. SCDDSN reported that $103,808.00 would be spent for respite services provided in ICF/MR facilities during 2009, however, institutional respite services were reported to cost $1,122,660.00 during 2010, a more than ten fold increase.
206. After informing Commissioners and the public that waiver services had to be reduced because of a $4.6 million deficit at SCDDSN, within the month of the Commissioners voting on these reductions, the Interim Director of SCDDSN wrote to the Budget and Control Board asking for permission to spend a previously undisclosed “reserve” account which contained more than $7 million.
207. $2.8 million of those “reserve”funds were paid to three local DSN Boards to purchase 38

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large congregate workshops which had not been included in the agency’s capital funding plan approved just months earlier and were not included in the budget approved by the General Assembly in May 2009. 208. Contrary to the national trend, South Carolina has continued to expend significant resources providing services and infrastructure in the most expensive congregate, institutional facilities, where persons who have disabilities are stigmatized and isolated from their families, their friends and their communities. 209. SCDDSN continues to expend a large portion of its budget on services provided in ICF/MR (Intermediate Care Facility/Mental Retardation) facilities, which are highly regulated and isolated nursing facilities for persons who have mental retardation and related disabilities. 210. The reductions to the MR/RD Medicaid program were made without legislative review or approval and without conducting an economic or medical study to consider whether these reductions are consistent with efficiency, economy, quality of care and access to services. 42 U.S.C. § 1396a(a)(30). 211. Defendants submitted and obtained approval for these changes without performing any economic analysis of the effect these reductions would have on prevention measures, as is required by South Carolina Code of Laws § 44-6-70. 212. Likewise, DDSN did not perform a study of the effect these changes would have on the delivery of services by non-DSN Board providers (freedom of choice required by 42 U.S.C. § 1396a(a)(23). 213. Reductions to services provided to Plaintiffs by Defendants put these individuals with disabilities, who have successfully resided in the community for many years, at
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imminent risk of institutionalization, in clear violation of Title II of the Americans with Disabilities Act, Section 504 and the Medicaid Act. 214. Defendants have discriminated against persons who have the most severe disabilities by allocating funding based on where the individual lives rather than basing funding on the severity of the participant’s disability and their need for support to remain in the community. 215. SCDDSN provides greater funding to persons who live in the most restrictive segregated settings, the SCDDSN Regional Centers instead of allocating funding with an even hand and it fails to base funding on the individual medical needs of the waiver participant in light of the needs of all persons served by the South Carolina Department of Disabilities and Special Needs (SCDDSN). 216. Defendants have based the allocation of waiver services on decisions made by bureaucrats and these decisions are being made in a vacuum without considering the opinions of treating physicians or other qualified treating medical sources. 217. Defendants have reduced or failed to provide medically necessary services which are needed to assure the health and welfare of Medicaid waiver participants, as is required by the Medicaid Act. 218. SCDDSN has adopted a written policy that the “money follows the person” on paper. According to this policy, when a waiver participant moves from an institutional setting or another restrictive setting to a less restrictive setting in the community, the individual’s funding provided in the institution is supposed to follow him. 219. However, in practice, when an individual moves from a facility operated by SCDDSN or one of its local DSN Boards to a less restrictive setting in the
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community, SCDDSN drastically reduces available funding, regardless of whether the persons’ needs can be safely met at the reduced funding level. 220. The result of these practices is that the State has diverted a disproportionate amount of its resources to maintaining the monopoly of SCDDSN congregate facility providers (including local DSN Boards), thereby violating the choice of providers of waiver participants in violation of 42 U.S.C. § 1396a(a)(23). 221. Defendants have jeopardized the ability of waiver participants to live and work in the community by placing them at risk of institutionalization in order to receive the services they need. 222. Amendments implemented on January 1, 2010 eliminated speech and language, physical therapy and occupational therapy services from the MR/RD Medicaid waiver program (Mental Retardation/Related Disability). These services would be provided if the waiver participant moved to an ICF/MR facility, at a greater cost to the Sate. 223. Defendants established limitations on personal care attendant and adult companion services at 28 hours a week (combined for both services). 224. The option of daily home-based respite was eliminated and participants are now restricted to receiving 68 hours of respite per month in their own homes (with a maximum cap of 240 hours a month in the home only if a temporary exception is granted by SCDDSN). 225. Nursing hours were limited to 56 hours of LPN or 42 hours of RN. 226. These caps are arbitrary and are unrelated to the medical needs of waiver participants or the cost that the State would incur if institutional services were provided. Arbitrary
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caps were placed on the cost of wheelchairs and other supports (diapers, wipes and nutritional supplies) which people who have disabilities need to remain at home. 227. SCDDSN has informed Plaintiffs that their home and community based Medicaid waiver services will likely soon be further reduced, or may perhaps even be totally eliminated, while increasing expenditures at Regional Center and ICF/MR facilities. 228. Defendants have acted in concert to deny plaintiffs of a fair hearing and SCDHHS regularly dismisses the fair hearing appeals filed by waiver participants in violation of Plaintiffs’ constitutional due process rights and 42 U.S.C. § 1396a(a)(3) of the Medicaid Act. 229. The United States Supreme Court in Olmstead v. L.C. ex rel. Zimrig, 527 U.S. 581 (1999), has determined that unnecessary institutionalization of individuals with disabilities is a form of discrimination under Title II of the ADA. In that case, the Supreme Court interpreted the ADA’s “integration mandate” as requiring persons with disabilities to be served in the community when: (1) the state determines that community-based treatment is appropriate; (2) the individual does not oppose community placement; and (3) community placement can be reasonably accommodated without fundamentally altering the nature of the State’s programs. Id. at 607. 230. Most personal care, attendant and nursing services are provided by private providers, not DSN Boards or SCDDSN. 231. Respite services are provided at a significantly lesser rate than that paid to personal care attendants and respite workers do not receive the benefits SCDDSN provides to caregivers working in Regional Centers.
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232. The changes that went into effect on January 1, 2010 were intended to limit waiver participants’ choice of providers and to continue the monopoly of SCDDSN and local DSN Board providers.
233. According to SCDDSN, all of its beds are full. If Plaintiffs attempted to exercise their right to receive ICF/MR services in order to insure their health and safety in the event that their waiver services are reduced, it is unlikely that this request would be honored. They would instead be placed on a waiting list. Many individuals have been on the SCDDSN residential waiting lists for more than fifteen years.
234. Because of arbitrary caps Defendants have placed on Medicaid waiver services, many persons with disabilities who would like to move from hospitals and other institutions are prevented from doing so, even though the cost of services in the community would be far less expensive than their cost of care in an institution.
235. SCDDSN has reported that no residential beds are currently available in its system, and it is not uncommon for waiver participants to have to wait for many years for a residential bed in a group home or other less restrictive setting. Some waiver participants have spent years in ICF/MR respite services because of the failure to provide adequate supports in the community.
236. A report released by South Carolina Protection and Advocacy for People with Disabilities, Inc. in 2005 titled “Unequal Justice for South Carolinians,” documented that even though significantly more is spent on congregate services in SCDDSN facilities, Defendants have failed to protect the health and welfare of persons living in these more restrictive facilities. Plaintiffs are being forced to enter these SCDDSN funded residential programs by Defendants’ denial of home-based services. 43

6:10-cv-00767-TMC Date Filed 05/25/11 Entry Number 108 Page 44 of 57
237. Defendants caused an amount equal to 90% of the federal stimulus funds paid to SCDDSN in FY 2009 to be transferred to a rainy day fund, instead of using these funds to maintain home-based waiver services.
238. At the end of FY 2010, this rainy day fund should have contained more than $195 million. By law, these funds must be used to provide “health care.”
239. According to the Defendants, these funds are state dollars, not federal dollars. If that is correct, if these funds were used to provide Medicaid services, South Carolina would be entitled to receive matching federal funds in excess of $700 million.
240. Limits were imposed by the Defendants on nursing services and the cost of wheelchairs. Defendants also imposed arbitrary limits on the number of diapers and nutritional supplements waiver participants could receive.
241. Defendants totally eliminated Plaintiffs’ access to speech and language services, physical therapy and occupational therapy from the MR/RD Medicaid waiver program. Defendants enacted the reductions in speech and language services without studying the risks and benefits of eliminating those services, including the number of deaths and injuries due to choking or swallowing disorders.
242. Elimination of speech and language services effectively terminated waiver participants’ access to assistive communications devices, since an assessment by a qualified speech therapist is required in order to receive a prescription for an assistive communications device.
243. As a result, persons who have speech disorders will not be able to communicate with their caregivers, their families or people in their communities.
244. Although Plaintiffs were not receiving physical therapy or occupational therapy 44

6:10-cv-00767-TMC Date Filed 05/25/11 Entry Number 108 Page 45 of 57
services, their option to receive these services in the future was eliminated with the changes that went into effect on January 1, 2010. 245. These changes were made without conducting any cost analysis to determine whether the changes would reduce, or increase, the cost of the home and community based waiver programs. Defendants did not consider whether such reductions are consistent with efficiency, economy, quality of care and access to services, considerations required by 42 U.S.C. § 1396a(a)(30). Defendants made no study of whether these reductions would assure the cost-effective delivery of services or the effect these reductions would have on prevention measures, as is required by South Carolina Code of Laws § 44-6-70. 246. No study was made of the medical consequences which would occur when these services were reduced or eliminated and whether the health and welfare of waiver participants would be jeopardized by reducing these services. No public input was requested before SCDHHS approved these reductions in May 2009. An “after the fact” public hearing was held in June. 247. Defendants Keck, Buscemi, Floyd and Huntress have acted in concert under color of law to deprive Plaintiffs of rights and privileges secured by the laws of the United States and have failed to provide reasonable modifications to the State’s programs to protect the rights of Plaintiffs guaranteed under the ADA, Section 504. 42 U.S.C. § 1983.
45

6:10-cv-00767-TMC Date Filed 05/25/11 Entry Number 108 Page 46 of 57
COUNT ONE VIOLATION OF THE AMERICANS WITH DISABILITIES ACT 248. In Count One, the term “Defendants” refers to Anthony Keck, Beverly Buscemi, Kelley Floyd, Richard Huntress, SCDHHS and SCDDSN. 249. Plaintiffs adopt and restate the allegations set forth above in this complaint. 250. It is undisputed that Plaintiffs are qualified individuals with disabilities who have physical and/or mental impairments that substantially limit one or more of their major life activities, including, but not limited to one of more of the following: thinking, walking, communicating, learning, working, caring for themselves and concentrating. See 42 U.S.C. § 12102. 251. Public entities, like the South Carolina Department of Health and Human Services and the South Carolina Department of Disabilities and Special Needs, are required by federal law to make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, except where the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity. 28 CFR § 35.130(b)(7) (1998). 252. The South Carolina Department of Health and Human Services, the South Carolina Department of Disabilities and Special Needs are public entities. 253. The State’s treating professionals have determined that community-based treatment is appropriate; the Plaintiffs do not oppose community placement and their needs can be reasonably accommodated without fundamentally altering the nature of how the State delivers services.
46

6:10-cv-00767-TMC Date Filed 05/25/11 Entry Number 108 Page 47 of 57
254. Under the “integration mandate” of Title II Of the ADA and Section 504 of the Rehabilitation Act, Defendants must administer long-term care services in a manner that provides services to individuals who have disabilities in the most integrated setting appropriate to their needs.
255. The actions taken by Defendants discriminate against persons with the greatest needs who have remained or returned to the community in good faith reliance on promises of services and supports provided by SCDDSN; they oppose living and spending their days in workshops or congregate residential settings where they will be isolated from the community, their families and friends.
256. The isolation and segregation of individuals with disabilities is a serious and pervasive form of discrimination in South Carolina and the State’s unjustified placement of these persons in institutional workshops and residential congregate programs severely limits their exposure to the outside community, constituting a form of discrimination based on disability which is prohibited by Title II. 42 U.S.C. § 12101(a)(2), (5).
257. The State’s unjustified placement of these persons in institutional day and residential congregate programs severely limits their exposure to the outside community, constituting a form of discrimination based on disability which is prohibited by Title II, 42 U.S.C. § 12101(a)92), (5).
258. Institutional placement of persons who benefit from being integrated into the community perpetuates unwarranted assumptions that the persons so isolated are incapable or unworthy of participating in community life. Institutional confinement in congregate day and residential facilities severely diminishes individuals' everyday 47

6:10-cv-00767-TMC Date Filed 05/25/11 Entry Number 108 Page 48 of 57
life activities, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment. 259. Title II of the Americans with Disabilities Act (“ADA”) provides that “no qualified
individual with a disability shall, by reason of the disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity or be subject to discrimination by such entity.” 42 U.S.C. § 12132. 260. The ADA and its implementing regulations found at 28 C.F.R § 35.130(d) require the States to administer services, programs and activities in “the most integrated setting appropriate” to the needs of qualified individuals with disabilities. This integration mandate is not limited to residential programs, but covers all services and programs where persons with disabilities and discriminated against because of their disability. 261. Under changes made by SCDHHS and SCDDSN to the home and community based waiver programs operated by SCDDSN, persons with mental disabilities are being forced, because of their disabilities, to relinquish their right to participate in community life, which they could enjoy given reasonable accommodations, at less cost than congregate services SCDDSN attempts to impose upon the Plaintiffs. 262. Reductions in home and community based services by the Defendants constitute discrimination against persons who have disabilities, who, unlike persons who have less severe disabilities, are unable to have their needs met in their homes and communities under the arbitrary limitations established by the Defendants. 263. The services Plaintiffs request are clearly not unreasonable, given the demands on the State’s health care budget and the resources available to pay for these services, because the services Plaintiffs request cost less than placement in a SCDDSN
48

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Regional Center.

264. The United States Supreme Court in Olmstead v. L.C. ex rel. Zimrig, 527 U.S. 581

(1999), held that unnecessary institutionalization of individuals with disabilities is a

form of discrimination under Title II of the ADA. In doing so, the Supreme Court

interpreted the ADA’s “integration mandate” as requiring persons with disabilities to

be served in the community when: (1) the state determines that community-based

treatment is appropriate; (2) the individual does not oppose community placement;

and (3) community placement can be reasonably accommodated. Id. at 607.

265.

The Plaintiffs’ needs can be reasonably accommodated, as has been demonstrated

by their continuous care in the community for many years.

266.

Providing the services Plaintiffs request would not place an unreasonable burden

on the State nor would it force the state to fundamentally alter the nature of its

programs.

267.

Services requested by Plaintiffs can be provided without undue burden to the

state, taking into consideration its obligation to provide health care and services

with an “even hand.”

268.

Defendants have failed to make reasonable modifications to the home and

community based waiver programs operated by SCDDSN, which are necessary

for Plaintiffs to remain in the least restrictive setting. The failure to maintain

services to allow Plaintiffs to remain in their integrated home and community

based settings constitutes unlawful discrimination in violation of Title II of the

ADA and its implementing regulations at 28 C.F.R. § 35.130(d).

269.

Defendants have failed to exercise their discretion in a non-discriminatory

49

6:10-cv-00767-TMC Date Filed 05/25/11 Entry Number 108 Page 50 of 57
manner, denying Plaintiffs necessary funds used to provide home and community based services they require to remain in the least restrictive setting. 270. Plaintiffs request an order finding that Defendants have violated the Americans with Disabilities Act by operating its service delivery system to maintain segregated congregate facilities and to promote the economic health of the local DSN Boards and SCDDSN. 271. Plaintiffs request an award of fees, costs and expenses and such other relief as this Court shall determine to be just.
COUNT TWO VIOLATION OF SECTION 504 OF THE REHABILITATION ACT 272. In Count Two, the term “Defendants” refer to Anthony Keck, Beverly Buscemi, Kelly Floyd, Richard Huntress, SCDHHS and SCDDSN. 273. Plaintiffs adopt and restate the allegations set forth above in this complaint. 274. Section 504 of the Rehabilitation Act of 1973 provides, “no otherwise qualified individual with a disability in the United States...shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. 29 U.S.C. § 794(a). 275. “Program or activity’ includes a department, agency, special purpose district, or other instrumentality of a State or local Government. 29 U.S.C. § 794(b)(1)(A). 276. “Recipient” of federal financial assistance also includes any public or private agency or other entity to which Federal financial assistance is extended directly or through another recipient. 28 C.F.R. § 41.3(d).
50

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277. Regulations implementing Section 504 require a recipient of federal financial assistance to administer its services, programs, and activities in the “most integrated setting appropriate” to the needs of qualified individuals with disabilities. 28 C.F.R. § 41.51(d).
278. Defendants receive federal financial assistance under Section 504 and its implementing regulations. Federal Medicaid funds account for nearly 80% of the cost of the home and community based waiver programs administered by SCDDSN.
279. Defendants and their contracting agencies and organizations are recipients of Federal financial assistance under Section 504 and its implementing regulations.
280. Plaintiffs are “qualified persons with disabilities” within the meaning of Section 504 because they have physical and/or mental impairments that substantially limit one or more major life activities, and they meet the essential eligibility requirements for the home and community based waiver programs administered by SCDDSN. See 29 U.S.C. § 705(9).
281. Defendants have failed to make funds available, up to the cost of ICF/MR services, thereby preventing Plaintiffs access to services they need to remain out of congregate facilities such as workshops and segregated residential homes funded by SCDDSN.
282. Defendants have failed to make reasonable modifications to home and community based waiver programs to allow Plaintiffs to utilize waiver services so that they can successfully maintain their placement in the least restrictive setting appropriate to their needs.
283. Defendants’ actions stigmatize the Plaintiffs and jeopardize the Plaintiffs’ ability to remain integrated into the communities in their own homes or apartments. 51

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284. Failure to provide services in the least restrictive setting appropriate to the needs of waiver participants constitutes unlawful segregation in violation of Section 504 of the Rehabilitation Act and its implementing regulations at 28 C.F.R. 42.51(d).
285. Defendants have also utilized criteria and methods of administration that subject Plaintiffs to discrimination on the basis of disability, including risk of unnecessary institutionalization, by (1) failing to assess properly the services and supports that would enable Plaintiffs to remain in the community, (2) failing to ensure that Plaintiffs have access to Medicaid-covered services that will meet their needs in the community, and (3) compelling health care providers to reduce recommended levels of in home nursing and community based services, thereby violating Section 504 and its implementing regulations.
286. Plaintiffs request an award of fees, costs and expenses and such other relief as this Court shall determine to be just. COUNT THREE VIOLATION OF THE MEDICAID ACT
287. In Count Three, the term “Defendants” refers to all named individual and agency defendants, except where allegations are specifically limited to the individuals named in a particular paragraph.
288. Plaintiffs adopt and restate the allegations set forth in the paragraphs above. 289. Plaintiffs are at immediate risk of institutionalization if an injunction is not issued by
this Court requiring Defendants to comply with the Medicaid Act 290. Defendants Sanford, Haley, Keck and Buscemi have acted in concert with one
another and others to violate Plaintiffs constitutional due process right to a fair
52

6:10-cv-00767-TMC Date Filed 05/25/11 Entry Number 108 Page 53 of 57
hearing required by 42 C.F.R. § 431 et seq. 291. Defendant Keck has not required DHHS to comply with the fair hearing regulations
since he was appointed by Governor Nikki Haley as Director of DHHS in January 2011 and he has failed to protect the due process rights of Plaintiffs. 292. Defendants violated Plaintiffs’ rights under 42 C.F.R. § 431.210 by failing to provide notice complying with the clear mandates of that section by failing to provide legitimate reasons for attempting to reduce services and by failing to cite the specific regulations supporting the reduction of MR/RD Medicaid waiver services. 293. Acting under color of law, the individual Defendants named in this Complaint have deprived Plaintiffs of services to which they are entitled as a result of their disabilities. 294. Defendants have violated the Medicaid Act by failing to provide comparable Medicaid services to individuals with severe disabilities as are available to the general public, failing to provide MR/RD Medicaid waiver services in sufficient amount, duration and scope to prevent the Plaintiffs from moving to a more restrictive setting, failing to implement and employ reasonable standards; failing to provide services with reasonable promptness, failing to provide services from the participant’s choice of providers; failing to inform waiver participants of all feasible alternatives under the waiver and failing to assure that the health and welfare of waiver participants is protected. 295. Defendants have violated the Medicaid Act by promoting the monopoly of the local DSN Boards and those private corporations which SCDDSN has historically treated as local DSN Boards, thereby reducing Plaintiffs’ freedom of choice of providers. 42
53

6:10-cv-00767-TMC Date Filed 05/25/11 Entry Number 108 Page 54 of 57
U.S.C. § 1396a(a)(23). 296. These actions have violated Plaintiffs’ rights under 42 U.S.C. §§ 1396a(a)(3) (due
process), 1396a(a)(8) (reasonable promptness); 1396a(a)(10) (sufficiency); 1396a(a)(17) (reasonable standards); 1396a(a)(23) (choice of provider); 1396a(a)(30) (equal access and adequate payment rates) and 42 C.F.R. § 441.302 (assurance of protecting health and welfare and financial accountability). 297. Through their actions, the individual Defendants have violated the Supremacy Clause of the United States Constitution by implementing state policies which conflict with the clear requirements of the Medicaid Act. 298. Actions taken by the Defendants proximately caused injury to Plaintiffs by denying services which have been promised by SCDDSN which are needed to remain in the least restrictive setting, i.e. their homes and communities. 299. Instead, Defendants may have spent funds intended to provide these services in disregard of the federal mandates contained in the Medicaid Act without regard for the consequences to the intended beneficiaries. 300. Plaintiffs request declaratory and injunctive relief finding that Defendants have violated the Medicaid Act as set forth herein. 301. Plaintiffs request payment of fees, costs and expenses and such other relief as this Court shall determine to be just.
COUNT FOUR VIOLATION OF 42 U.S.C. §§ 1983 and 1988 (Civil Rights) 302. In Count Four, the term “individual Defendants” refers to Marshall C. Sanford, Nikki Randhawa Haley, Anthony Keck, Beverly Buscemi, Kelly Floyd and Richard
54

6:10-cv-00767-TMC Date Filed 05/25/11 Entry Number 108 Page 55 of 57
Huntress. 303. Plaintiffs adopt and restate the allegations set forth in the paragraphs above. 304. The individual Defendants have violated Plaintiff’s rights under the Medicaid Act by
diverting, under the guise of “budget reductions” funding for services which Plaintiffs are entitled to receive. 305. The individual Defendants have acted in concert to violate the Due Process Clause of the Fourteenth Amendment by denying Plaintiffs’ right to a fair hearing meeting the requirements of 42 C.F.R. § 431.205 and by failing to render a final decision by an impartial hearing officer within 90 days of receipt of the request for a fair hearing, as is required by 42 C.F.R. § 431.221. 306. The individual Defendants have violated the Supremacy Clause of the United States Constitution by implementing state agency policies which conflict with the clear directives of the Medicaid Act and the United States Constitution. 307. Individual Defendants Buscemi, Floyd and Huntress have retaliated against Plaintiffs and the providers who have advocated for them by terminating, or attempting to terminate their certification as MR/RD Medicaid waiver providers. 308. The United States Supreme Court recognized in Olmstead that the Medicaid statute reflects a congressional policy preference for treatment in the community over institutional treatment. Forcing Plaintiffs into congregate programs against their will is a violation of their rights under the freedom of choice provisions of the Medicaid Act. 309. Welfare benefits are a matter of statutory entitlement for persons qualified to receive them. Goldberg v. Kelly, 397 U.S. 254 (1970).
55

6:10-cv-00767-TMC Date Filed 05/25/11 Entry Number 108 Page 56 of 57
310. Defendants have violated the Plaintiffs’ due process property rights and have thereby attempted to deprive Plaintiffs of life, liberty and property in violation of the Fourteenth Amendment of the United States Constitution.
311. Upon information and belief, Defendants Sanford, Haley, Keck, Floyd, Huntress and Buscemi have acted under color of state law to deprive Plaintiffs of property rights to which they are entitled.
312. Acting under color of state law, Defendant Keck has allowed the other Defendants to continue to act in a manner that does not protect the health and welfare of Plaintiffs and has not taken action necessary to assure that DHHS has full control over the policies and procedures of the MR/RD Medicaid waiver program.
313. Plaintiffs request prospective relief and an order declaring their rights under the Medicaid Act as set forth herein.
314. Plaintiffs request payment of fees, costs and expenses by the Defendants, with these fees, costs and expenses allocated in such shares and proportions as the Court determines to be appropriate and prays for such other relief as this Court shall determine to be just. PRAYER FOR RELIEF
315. Wherefore, the Plaintiffs respectfully request that this Court assume jurisdiction over this action and maintain continuing jurisdiction until defendants are in full compliance with every order of this Court.
316. Issue an order finding that Defendants included in Counts One and Two have violated the ADA and Section 504 of the Rehabilitation Act as set forth in this Complaint.
317. Issue an order finding that the Defendants included in Count Three have violated the 56

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Medicaid Act.

318. Plaintiffs request an order prohibiting the Defendants from reducing MR/RD

Medicaid waiver services and requiring Defendants to restore all services which were

reduced or eliminated by amendments to the State’s Medicaid applications to CMS.

319. Plaintiffs request an order directing Defendants to provide all home and community

based services which are determined by participants’ responsible treating physicians

to be medically necessary, so long as the cost of these services is less than the cost of

their care in a Regional Center, except where the orders of the treating physician

involve Medicaid fraud or are outside of the reasonable standards of medical care, as

determined by responsible and unbiased medical professionals.

320. Plaintiff’s request the relief requested in this complaint and such other relief as shall

be determined by this Court to be just and equitable, including payment of legal fees

and costs of this action.

321. Declare that individual Defendants Sanford, Haley, Keck, Floyd, Huntress and

Buscemi have acted to deny the civil rights of the Plaintiffs in violation of 42 U.S.C.

§§ 1983 and 1988.

Respectfully submitted,

s/Patricia L. Harrison Patricia Logan Harrison 611 Holly Street Columbia, South Carolina 29205 plh.cola@att.net
803 256 2017 Fed. Ct. No. 6963

Kenneth C. Anthony, Jr. Anthony Law Firm PO Box 3565 Spartanburg, South Carolina 29304 kanthony@anthonylaw.com 864 582 2355 Fed. Ct. No.

May 25, 2011

57

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION

Peter B., Jimmy “Chip” E., and Michelle M. )

)

Plaintiffs,

)

)

v.

)

)

)

Marshall C. Sanford, Emma Forkner,

)

Beverly Buscemi, Kelly Floyd,

)

The South Carolina Department of Health )

and Human Services, and The South

)

Carolina Department of Disabilities

)

and Special Needs

)

)

Defendants.

)

____________________________________)

C.A. No. 6:10-cv-00767-JMC ORDER

This matter is before the Court on Defendant Marshall Sanford’s first motion to dismiss

[Doc.# 11] pursuant to Federal Rules of Civil Procedure 12(b)(1) & (6). Plaintiffs allege violations

of Title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12132; Section 504

of the Rehabilitation Act of 1973 (Section 54); the Medicaid Act, 42 U.S.C. § 1396; and 42 U.S.C.

§§ 1983, 1985, 1988. The Magistrate Judge’s Report and Recommendation [Doc.# 73], filed on

December 6, 2010, recommends that Defendant’s motion to dismiss [Doc. # 11] be granted as to all

causes of action in Plaintiffs’ original Complaint [Doc. # 1]. Furthermore, Defendant should not

be dismissed from the case insofar as additional averments against him, related to newly added

Medicaid Act and 42 U.S.C. § 1983 claims, have not been implicated, and, therefore, are not

addressed, by the present motion. The Report and Recommendation sets forth in detail the relevant

facts and legal standards on this matter, and the court incorporates the Magistrate Judge’s

1

recommendation herein without a recitation. The Magistrate Judge’s Report and Recommendation is made in accordance with 28 U.S.C.
§ 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objections are made, and the court may accept, reject, or modify, in whole or in part, the Magistrate Judge’s recommendation or recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).
In the absence of objections to the Magistrate Judge’s Report and Recommendation, this court is not required to provide an explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). Rather, “in the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.’” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note). Furthermore, failure to file specific written objections to the Report and Recommendation results in a party’s waiver of the right to appeal from the judgment of the District Court based upon such recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).
After a thorough review of the Report and Recommendation and the record in this case, the court adopts the Magistrate Judge’s Report and Recommendation [Doc. # 73] and incorporates it
2

herein. It is therefore ORDERED that Defendant’s first motion to dismiss [Doc. # 11] is GRANTED as to all causes of action in Plaintiffs’ original Complaint [Doc. # 1]. Defendant is not dismissed from the case insofar as additional averments against him, related to newly added Medicaid Act and 42U.S.C. § 1983 claims, have not been implicated, and, therefore, are not addressed, by the present motion.

IT IS SO ORDERED.
Greenville, South Carolina February 1, 2011

s/ J. Michelle Childs United States District Judge

3

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION

Peter B., Jimmy “Chip” E., and

)

Michelle M.,

)

)

Plaintiffs,

)

)

v.

)

)

Marshall C. Sanford, Emma Forkner,

)

Beverly Buscemi, Kelly Floyd, The South )

Carolina Department of Health and Human )

Services and The South Carolina

)

Department of Disabilities and Special )

Needs,

)

)

Defendants.

)

___________________________________ )

ORDER AND OPINION C.A. No.: 6:10-cv-00767-JMC

Plaintiffs Peter B., Jimmy “Chip” E., and,Michelle M. (“Plaintiffs”) bring this action against

Defendants Marshall C. Sanford, Emma Forkner, Beverly Buscemi, Kelly Floyd, The South Carolina

Department of Health and Human Services (“DHHS”) and The South Carolina Department of

Disabilities and Special Needs, seeking declaratory and injunctive relief for violation of Title II of

the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12132; Section 504 of the

Rehabilitation Act of 1973 (Section 54); and 42 U.S.C. § 1983. This matter is before the court on

the Magistrate Judge’s Report and Recommendation [Doc. 71] recommending that Plaintiffs’ Motion

for Preliminary Injunction [Doc. 12] be granted. After a thorough review of the record in this matter,

the applicable law, the Magistrate Judge’s Report and Recommendation, and Defendants’ objections,

the court adopts the Magistrate Judge’s Report and Recommendation for the reasons stated below.

1

STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight. The responsibility to make a final determination remains with this court.
See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court is charged with making a de novo
determination of those portions of the Report and Recommendation to which specific objection is
made, and the court may accept, reject, or modify, in whole or in part, the recommendation of the
Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).
FACTUAL AND PROCEDURAL BACKGROUND
The Report and Recommendation sets forth in detail the relevant facts and procedural
background of this matter, and the court incorporates by reference the Magistrate Judge’s recitation [Doc. 71, at 2-7].1
DISCUSSION
I. Justiciability
Defendants contend that the Magistrate Judge erred in finding this case ripe for adjudication.
Specifically, Defendants contend that Chip and Michelle do not present the court with a justiciable
controversy because they have not actually been subject to the proposed reduction in services due
1Defendants note that the Magistrate Judge inaccurately described the concept of “waiver.” In describing the operation of the waiver, the Magistrate Judge attributed the decision to exercise a waiver to certain qualifying individuals. By way of clarification, the actual waiver is an act of the Federal DHHS Secretary. Once the waiver is put in place, qualifying individuals may exercise certain service options including the option to participate in the provision of services outside the institutional setting.
Defendants also take issue with the Magistrate Judge’s estimation of hours provided to Chip and Michelle for personal care and respite services before and after the service changes at issue in this case. The court understands that the exact computation of relevant service hours is a point of dispute between the parties. However, for purposes of this motion, the exact calculation is unnecessary as there is no dispute that the changes effected by the January 1st Amendment (“Amendment”) alters the allocation of the type of services provided prior to the Amendment, even if the total number of service hours provided changes slightly or not at all as Defendants contend.
2

to Defendants’ promise to maintain pre-Amendment service levels during the pendency of the State appeals process.
The federal court has jurisdiction over an action only where a justiciable “case or controversy” exists. To satisfy the requirements of Article III, a plaintiff “must allege some threatened or actual injury ...” Linda R.S. v. Richard D., 410 U.S. 614, 617 (1973). The alleged injury must be sufficiently real and not merely conjectural or hypothetical. Blum v. Yaretsky, 457 U.S. 991, 1000 (1982) (quoting O'Shea v. Littleton, 414 U.S. 488, 494-96 (1974). The requirement that the harm alleged be of sufficient immediacy does not, however, require plaintiffs “to await the consummation of threatened injury to obtain preventive relief.” Id. (citations omitted).
In this case, the proposed changes under the Amendment in the case of Chip and Michelle and the actual changes imposed on Peter B. represent a modification of services that could substantially impact each of their abilities to remain in the community. While the court recognizes that Chip and Michelle’s services have been temporarily stayed at the discretion of Defendants, their ability to seek redress and more stable resolution through the court remains independent of the vagaries of Defendants. The evidence in the record, as thoroughly recited by the Magistrate Judge, demonstrates that the threat of institutionalization is very real and Plaintiffs’ claims are ripe for adjudication now. See Fisher v. Oklahoma Health Care Authority, 335 F.3d 1175, 1181 (10th Cir. 2003) (findings that an individual need not be institutionalized before he could challenge a discriminatory law or policy under the ADA).
3

II. Injunctive Relief2 Defendants also argue that the Magistrate Judge erroneously recommended that a preliminary
injunction issue because there is no likelihood of irreparable injury and it is unlikely that Plaintiffs will prevail on the merits.
“A preliminary injunction is an ‘extraordinary remed[y] involving the exercise of very far-reaching power to be granted only sparingly and in limited circumstances.’” MicroStrategy, Inc. v. Motorola, Inc., 245 F.3d 335, 339 (4th Cir. 2001); see also Real Truth About Obama, Inc. v. Fed. Election Comm’n , 575 F.3d 342, 345 (4th Cir. 2009), vacated by 103 S. Ct. 2371 (April 26, 2010), reinstated in relevant part by 607 F.3d 355 (4th Cir. June 8, 2010). Generally, the goal of a preliminary injunction is to “protect the status quo and to prevent irreparable harm during the pendency of a lawsuit, ultimately to preserve the court’s ability to render a meaningful judgment on the merits.” In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 525 (4th Cir. 2003).
To determine whether a plaintiff is entitled to a preliminary injunction, the plaintiff must demonstrate “(1) that he is likely to succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an injunction is in the public interest.” Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365, 374 (2008). “[A]ll four requirements must be satisfied.” Real Truth About Obama, Inc., 575 F.3d at 346; see also Winter, 129 S. Ct. at 376.
First, Defendants contend that it is very unlikely that the reduction in services to Plaintiffs will result in institutionalization; and, therefore, there is no likelihood of irreparable injury. More particularly, Defendants claim that the Magistrate Judge’s recommendation was based on
2Defendants ask the court to defer to the State court actions in the Administrative Law Court and the appellate court related to Peter. The State court actions do not relate to Plaintiffs’ ADA claims. Additionally, the State court dispositions thus far have not evaluated the merits of injunctive relief, but rather relied on State court procedural law.
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conclusions of the possible effects of institutionalization instead of the actual possibility that Plaintiffs may be placed in an institution based on the reduction in services.
Plaintiffs seeking injunctive relief must demonstrate that irreparable harm is likely in the absence of an injunction, not merely speculative. Winter, 129 S. Ct. at 376. Plaintiffs seeking injunctive relief must do more than establish the “‘possibility’ of irreparable harm.” Id. at 375. Instead, the “frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate injury is likely in the absence of an injunction.” Id. (emphasis supplied) (citing Los Angeles v. Lyons, 461 U.S. 95, 103 (1983)); see also Real Truth About Obama, Inc., 575 F.3d at 34648 (holding that the preliminary injunction standard articulated in Winter has overruled the Fourth Circuit’s previous standard for preliminary injunctions found in Blackwelder Furniture Co. v. Selig Mfg. Co., 550 F.2d 189 (4th Cir. 1977)). The harm to be prevented must be of an immediate nature and not simply a remote possibility. In re Microsoft Antitrust Litig., 333 F.3d at 527.
Plaintiffs submitted reliable evidence in the form of affidavits from their treating physicians and testimony of their current caregivers that supported their allegation that a reduction in services would cause dramatic changes in their current living conditions. Based on the physicians and caregivers’ knowledge of Plaintiffs’ needs, they attested that service reductions would lead to the need for institutional care. The Magistrate Judge noted these affidavits in her report in addition to detailing the possible consequences of placing Plaintiffs in an institution. The court finds that this evidence demonstrates that institutionalization is sufficiently likely; and therefore, the issuance of a preliminary injunction is warranted. Defendants would have the court wait until Plaintiffs are actually removed from their current living arrangements. However, the standard requires a finding of likelihood, not absolute certainty. Further, the harm to be prevented will have already been done should the court adopt Defendants’ position to wait until the effects of the service reductions are certain.
5

Next, Defendants argue that the Magistrate Judge erred in finding a likelihood of success on the merits. Because a preliminary injunction grants relief on a temporary basis prior to trial, the party seeking the preliminary injunction must demonstrate that it is likely to succeed on the merits at trial by “a clear showing” and may not rest on merely the probability of success. Real Truth About Obama, Inc., 575 F.3d at 345 (citing Winter, 129 S. Ct. at 376). The ADA prohibits states from discriminating against mentally disabled persons through unnecessary segregation. Olmstead v. L.C., 527 U.S. 581, 600-02 (1999). Under the ADA, states are required to provide community-based treatment for persons with mental disabilities when the State's treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities. Id. at 587.
In this case, the only dispute between the parties’ concerns whether Defendants can reasonably accommodate Plaintiffs’ community placement given the resources available to the State and the needs of others with mental disabilities. Plaintiffs submitted substantial evidence tending to show that the State has available resources to maintain the services required for Plaintiffs to remain in community placements. Plaintiffs have further submitted evidence that demonstrates the possibility that community placement will result in net savings to the State for the services required for Plaintiffs. The Magistrate Judge’s report outlines this evidence in detail.
Based on the evidence in the record at this point in the litigation, Plaintiffs have a sufficient likelihood of success on the merits to support the imposition of a preliminary injunction.
Finally, Defendants urge the court to find that preliminary injunctive relief would cause harm to Defendants and to the public interest. In determining whether to allow injunctive relief, the court “must balance the competing claims of injury and must consider the effect on each party [and the public interest] of the granting or withholding of the requested relief.” Winter, 129 S. Ct. at 376
6

(quoting Amoco Prod. Co. v. Gambell, 480 U.S. 531, 542 (1987)). However, Defendants provide the court with little argument regarding the possible harm they will suffer should the injunction be allowed. Defendants essentially claim that injunctive relief would undo the Amendment. Defendants ignore the fact that the very purpose of injunctive relief is to maintain the status quo while the merits of the case are litigated. If the court accepted Defendants’ assertion of harm, the preliminary injunctive relief would never be appropriate. On the other hand, absent the requested relief, Plaintiffs are subject to a reduction in services at any time - despite the ongoing litigation over the legitimacy of the reduction. The possible harm to Plaintiffs in this case outweighs the possible harm to Defendants and the public interest will not suffer from temporarily requiring the State to do that which they claim they would voluntarily do anyway pending the resolution of this matter.
For the foregoing reasons, the court adopts the Magistrate Judge’s Report and Recommendation [Doc. 71] and GRANTS Plaintiffs’ Motion for Preliminary Injunction [Doc. 12]. Defendants shall maintain and/or return services in the quality, kind, and volume enjoyed by Plaintiffs prior to January 1, 2010, and, in the case of Peter B., prior to July 2009.
IT IS SO ORDERED. s/ J. Michelle Childs United States District Judge
March 7, 2011 Greenville, South Carolina
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 6:10-cv-00767-TMC Date Filed 04/21/10 Entry Number 11 Page 1 of 2
UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION __________________________________________
Civil Action No. 6-10-cv-767-RBH-BHH ___________________________________________
Peter B., Karen W., Jimmy “Chip” E., Michelle M., Plaintiffs,
v. Marshall C. Sanford, Emma Forkner, Beverly Buscemi, Kelly Floyd, the South Carolina Department Of Health and Human Services, and the South Carolina Department of Disabilities and Special Needs,
Defendants.
________________________________________________ DEFENDANT GOVERNOR SANFORD’S
MOTION TO DISMISS PLAINTIFFS’ COMPLAINT ________________________________________________ Pursuant to 12(b)(1), or in th e alternative 12(b)(6), of the Federal Rules of Civil Procedure, Defendant Governor Marshall C. Sanford (Governor Sanford) submits this Motion to Dismiss Plaintiffs’ Complaint because he is immune from suit under the Eleventh Amendment of the United States Cons titution. Also, pursuan t to Rule 12 (b)(6), Governor Sanfo rd moves to dismiss all claims against him in his individual capacity as he is cannot be personally liable for the conduct alleged in Plaintiffs’ Com plaint. Governor Sanford further m oves to dism iss Plaintiffs’ claim under 42 U.S.C. § 1983 because Congress has foreclosed use of that statute as a means of redressing the disability discrimination alleged in Plaintiffs’ Complaint.

6:10-cv-00767-TMC Date Filed 04/21/10 Entry Number 11 Page 2 of 2

The grounds and argum ents in support of this Motion are set forth in m ore detail in the Memorandum in Support of Defendant Governor Sanford’s Motion to Dismiss.
Respectfully submitted by:

__/s/ E. Office 1100 Colum (803)
April 21, 2010 Columbia, South Carolina

E. Brandon Gaskins_______________ Brandon Gaskins (Fed. I.D. # 9507)
of the Governor of South Carolina Gervais Street bia, South Carolina 29201 734-2100 bgaskins@gov.sc.gov
ATTORNEY FOR GOVERNOR MARK SANFORD

 
 6:10-cv-00767-TMC Date Filed 04/29/10 Entry Number 12-1 Page 1 of 37
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION CIVIL CASE NO. 6-10-CV-767-RBH-BHH Peter B., Karen W., Jimmy Chip E., and Michelle M., Plaintiffs, vs. Marshall C. Sanford, Emma Forkner, Beverly Buscemi, Kelly Floyd, the South Carolina Department of Health and Human Services and the South Carolina Department of Disabilities and Special Needs,
Defendants. ______________________________________ Memorandum in Support of Motion for Injunctive Relief ______________________________________ Plaintiffs Peter B., Jimmy Chip E. and Michelle M. (hereinafter referred to as the Plaintiffs ) seek a Preliminary Injunction pursuant to Fed.R.Civ.P 65(b) to enjoin Defendants from violating the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act. This lawsuit challenges major reductions in services which have been provided by the South Carolina Department of Disabilities and Special Needs (SCDDSN). These changes put Plaintiffs at imminent risk of entry into institutional settings in order to receive necessary care. These Plaintiffs have successfully resided in the community for many years and the actions taken by the Defendants to reduce home-based services will force them into more restrictive and segregated settings that are likely to harm them. Defendants have made reductions in services without regard to the individual needs of people whose medical histories demonstrate serious harm if they do not continue to receive the services SCDDSN has provided through the MR/RD Medicaid waiver for many years. These actions by
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Defendants are in direct contravention of the requirement to integrate persons who have disabilities into the community, as mandated by the integration mandate of the ADA, Section 504 and Olmstead v. L.C. ex re. Zimring. 527 U.S. 581 (1999). Plaintiffs are entitled to a preliminary injunction because they can demonstrate a likelihood of success on the merits of their title II integration claim; placement in a congregate setting or an institutional setting will cause irreparable harm; the balance of hardships weighs in favor of Plaintiffs; and granting the injunction is in the public interest. I. Jurisdiction and Venue.
Jurisdiction of this Court is proper because this case arises under the laws of the United States based upon federal rights granted to Plaintiffs under Title II of the Americans with Disabilities Act of 1990 ( ADA ), 42 U.S.C. §§ 12132 and 12133 and Section 504 of the Rehabilitation Act of 1973 ( Section 504 ). Plaintiffs have and will continue to suffer irreparable injury if rights guaranteed under the ADA and Section 504 continue to be violated. This Court has jurisdiction under 28 U.S.C. 1331 and 1343(a)(3) and (4). Declaratory and injunctive relief is authorized by 28 U.S.C. 2201 and 2202 and Fed. R. Civ. P. 65.
Venue is proper because the Defendants provide these services in this District and because the events, acts and omissions giving rise to the Plaintiffs claims have occurred in this District. II. The Plaintiffs
The Plaintiffs are qualified individuals under the ADA and Section 504 who have mental retardation or related disabilities. They have been able to remain in their homes for many years with services provided under the South Carolina MR/RD Medicaid waiver
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(Mental Retardation/Related Disabilities). Because Defendants have reduced services with no assessment of medical needs, Peter B., Chip E. and Michelle M. are at imminent risk of being forced from their homes into unnecessarily segregated settings in order to receive necessary services.
Peter B. has mental retardation, hydrocephalus, diabetes and coronary heart disease. Exhibits 1 and 3. Declarations of Carolyn Brown and Tod Reel, M.D. He has lived independently in an apartment for many years, a placement SCDDSN has repeatedly determined to be most appropriate to meet his needs. For many years after Peter moved from an ICF/MR facility, SCDDSN paid for Peter to receive at least twelve hours a week of services from a companion.1 These services allowed him to function in this less restrictive setting. These limited services, which have been identified by various descriptions (enhanced waiver services, one-on-one services, enhanced staff support, etc.) allowed Peter to live a full and active life: he has held a job for more than 20 years and enjoys interacting with his friends and neighbors in the community. Exhibit 1. Declaration of Carolyn Brown. Peter desires to continue to live independently in his apartment, but since his companion services were terminated by SCDDSN in July 2009, Peter s mental and physical conditions have deteriorated. Exhibits 3 and 14. Declarations of Tod Reel, M.D. and Lennie Mullis. He is at risk of losing his job if his mental condition continues to decline and he would have to move

1

An ICF/MR is a nursing facility for persons who have mental retardation or a related

disability, like epilepsy, cerebral palsy or autism. It is the most restrictive setting in

which SCDDSN provides services. These services are provided either in large Regional

Centers operated by SCDDSN, or in 8 to 16 bed ICF/MR residences operated by local

DSN boards. None of the ICF/MR facilities in South Carolina are operated by a private

provider which is not treated by SCDDSN as a local DSN board.

3

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to a group home or other congregate setting. Peter s anxiety and depression have increased since his companion were terminated by SCDDSN and SCDHHS. Exhibit 14. Declaration of Lennie Mullis.
Living in a group home would be more restrictive and would stigmatize and segregate Peter from nondisabled persons in the community. The companion services Peter requests are covered services under the MR/RD Medicaid waiver. Companion services can be provided, at less expense, than the congregate workshop services SCDDSN is willing to provide. Without the necessary companion services, Peter B. faces imminent risk of two distinct institutional placements: the congregate workshop or a congregate residential placement. Instead of forcing Peter B. to relinquish the benefits of community living, companion services can be provided to him in the community, as a less expensive and reasonable modification, without a fundamental alteration in the nature of SCDDSN s programs.
Chip E. has normal intelligence and severe cerebral palsy and a speech disorder. Exhibit 9. Affidavit of Chip E. He requires hands-on assistance with every activity of daily living because he cannot move his arms or his legs. Defendants have determined for years that the most appropriate and least restrictive setting for Chip is to live in his own home. Chip is very active in his community: he is a volunteer coach for the Clinton High School football team and he is a member of a car racing team, where he helps diagnose problems with the racing cars. Due to the recent cuts in Chip s services by Defendants, he will be forced to move against his will to an institutional setting, such as an ICF/MR, where he will be isolated from nondisabled persons and will be stigmatized. SCDDSN recently informed Chip that they intend to reduce his personal care attendant hours from eight hours a day to
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four hours a day. To remain at home, Chip needs personal care attendant services and adult companion services which would cost significantly less than his care would cost in a group home or an ICF/MR. He also needs access to a speech and language specialist to assist him with obtaining communications equipment covered by the waiver. All speech and language services for adults were terminated under the MR/RD Medicaid waiver on January 1, 2010. Defendants limited waiver participants to receiving a maximum of 28 hours a week of personal care and/or adult companion services on January 1, 2010. Providing Chip with the services he needs to remain at home would not require a fundamental alteration in SCDDSN s programs.
Michelle M. has autism, profound mental retardation, cerebral palsy, a bipolar disorder and is unable to speak. Exhibit 4.Affidavit of Barbara Morgan. She has severe and frequent seizures and requires tube feeding. SCDDSN has repeatedly evaluated her needs and found that they can best be met living at home. Her physician of many years agrees that Michelle s needs are best met living in her own home. Exhibit 5. Affidavit and letter of Mel Patterson, MD. SCDDSN has for years determined that home placement is the most appropriate and least restrictive setting for Michelle. She would be at risk of infections in a congregate setting. Id. Michelle has difficulty swallowing when she becomes congested and a respiratory infection could be life threatening to her. Returning Michelle to a congregate residential setting would severely compromise her health and immune system. Michelle has lived for years in the home of her parents, where she has received around-the-clock care and has frequent contact with her extended family and caregivers, who are intimately familiar with her needs. This is especially important because Michelle cannot speak and caregivers unacquainted with her behavior could not recognize her needs. Michelle is at risk of having
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to return to a Regional Center operated by SCDDSN, the most expensive services provided by the agency. She would be isolated from her family and would be at risk of serious harm, even death, if the services she needs are not continued at home. Providing Michelle with the services she requires to remain in the family home, services she has received for many years, would not result in a fundamental alteration in SCDDSN s programs. III. The Defendants
Defendant Marshall C. Sanford is the Governor of the State of South Carolina and he controls the South Carolina Department of Health and Human Services ( SCDHHS ), which is an agency in his cabinet. He has a duty to take care that the laws be faithfully executed. Defendant Sanford is responsible for directing, supervising and controlling all long term care programs for persons who have disabilities. 42 C.F.R. § 430.12. He is also responsible for appointing and removing members of the governing board of SCDDSN. He is responsible for assuring the federal government that the State Medicaid Plan will be in compliance with all laws and regulations related to the Medicaid program. 42 C.F.R. § 430.12.
Emma Forkner is the Director of the South Carolina Department of Health and Human Services, the cabinet level agency responsible for the administration of all Medicaid programs. Dr. Beverly Buscemi is the Director of the South Carolina Department of Disabilities and Special Needs and Kelly Floyd is the Chairman of the South Carolina Commission on Disabilities and Special Needs, the governing board for that agency.
SCDHHS is the agency that is responsible for the administration of all Medicaid programs in South Carolina. 42 C.F.R. §431.10. SCDHHS contracts with SCDDSN to operate the MR/RD Medicaid waiver program.
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6:10-cv-00767-TMC Date Filed 04/29/10 Entry Number 12-1 Page 7 of 37
IV. Plaintiffs meet the criteria for a preliminary injunction established in Winter v. Natural Resources Defense Council, Inc. This lawsuit challenges reductions in MR/RD Medicaid waiver services by
Defendants which will have the effect of eliminating medically necessary services that have allowed Plaintiffs to live successfully in their homes and communities. Without these necessary services, Plaintiffs are at imminent risk of entry into a workshop, a group home or an institutional residential placement. Plaintiffs meet all four of the criteria established in Winter v. Natural Resources Defense Council, Inc.: (1) they are likely to succeed on the merits at trial, (2) they are likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of the equities tips in Plaintiffs favor, and (4) an injunction is in the public interest., 129 S.Ct. 365, 374 (2008). See also The Real Truth About Obama, Inc. v. Federal Election Commission, 575 F.3d 342, 347 (4th Cir. 2009), pet. for cert. filed, No. 09724, 78 USLW 3375 (12/16/09).
1. The Plaintiffs are Likely to Succeed on the Merits of their Title II Claim.
a. The ADA and Community Integration
In Olmstead, the Supreme Court recognized the importance of the benefits of community integration for individuals with disabilities. In its analysis, the plurality pointed to the historic significance of the ADA: Congress enacted the ADA in order to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities. 42 U.S.C. § 12101(b)(1) cited in Olmstead at 589. The Court went on to examine the reasoning driving the enactment of the ADA and noted that in
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passing the statute, Congress recognized that historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a pervasive social problem. 42 U.S.C. § 12101(a)(2) cited in Olmstead at 588-589. The integration of individuals with disabilities into the mainstream of society is thus fundamental to the purposes of the ADA.
Additional legislative history of the ADA supports the position adopted by the Court in Olmstead. For instance, during testimony before a Senate committee, Connecticut Senator Lowell P. Weicker, Jr., a sponsor of the ADA, urged his fellow Senators to recognize the discrimination faced by persons who have disabilities: For years this country has maintained a public policy of protectionism toward people with disabilities. We have created monoliths of isolated institutions and in segregated educational settings. It is that isolation and segregation that has become the basis of the discrimination faced by many disabled people today. Separate is not equal. (Emphasis added.) Americans with Disabilities Act of 1989: Hearings on S. 933 Before the Senate Comm. on Labor and Human Resources and the Subcomm. on the Handicapped, 101st Con., 1st Sess. 215 (1989). Despite this history of discrimination that spurred the enactment of the ADA, twenty years after its adoption by Congress, an audit of SCDDSN conducted by the South Carolina Legislative Audit Council and actions taken by SCDDSN since that time (providing funding to purchase/renovate more congregate workshops) have documented that Defendants continue to buy and build even more isolated monoliths, where persons who have disabilities are sequestered and isolated in large congregate settings, rather than providing services which are integrated into the
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community. Exhibits 6 and 15. South Carolina Legislative Audit Council Audit of SCDDSN and minutes of the South Carolina Budget and Control Board, September 2009.
The ongoing commitment of the federal government to ensure that these goals are realized was clearly set forth on the tenth anniversary of the Olmstead decision, when the President of the United States joined the Secretary of the United States Department of Health and Human Services to declare that 2009 would be the Year of Community Living for people who have disabilities. Exhibit 7. White House Press Release re Year of Community Living. This commitment has been further recognized in remarks by Thomas E. Perez, Assistant Attorney General in charge of the United States Department of Justice Civil Rights Division, who noted that:
As the Supreme Court determined in the landmark Olmstead v. L.C. case, unjustified institutionalization stigmatizes individuals with disabilities as unworthy of participation in community life. New York and Connecticut can successfully provide community-based housing, such as scattered site apartments with supportive services, and the law requires them to do so to prevent unnecessary institutionalization.
Department of Justice website: http://blogs.usdoj.gov/blog/archives/category/crd. Exhibit 8. Briefs Filed in Three States to Enforce Supreme Court s Olmstead Decision.
Congress directed the Attorney General of the United States to issue regulations to implement the ADA, based on regulations issued under Section 504 of the Rehabilitation Act. See 42 U.S.C. § 12134; 28 C.F.R. § 35.190(a); Executive Order 12250, 45 Fed. Reg. 72995 (1980), reprinted in 42 U.S.C. § 2000d-1. These regulations require public entities to administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. 28 C.F.R. § 35.130(d). The preamble of this
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integration mandate explains that the most integrated setting is the one that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible. 28 C.F.R. § 35.130(d), App. A, at 571 (2009). The United States Supreme Court recognized that it must give respect to the interpretation of DOJ in interpreting the ADA. Olmstead at 583.
Nine years after Congress enacted the ADA, in Olmstead, the United States Supreme Court relied upon the interpretation of that statute by the Attorney General, declaring that the integration mandate of the ADA forbids unnecessary segregation and unjustified isolation of persons with disabilities and that such segregation and that isolation is a form of prohibited discrimination. 527 U.S. 581, 582, 600-601 (1999). In that case, the Supreme Court clearly defined the most integrated setting as the setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible. 527 U.S. at 592. When Defendants administer services in a way that puts individuals who have disabilities at risk of involuntary institutionalization, as the Defendants have done in this case, they violate Title II of the ADA and the mandates of the Supreme Court in Olmstead.
Separating Plaintiffs in this case from their friends and family in their chosen communities, isolating them in large congregate segregated workshops where they are warehoused with other persons who have disabilities, requiring them to spend hours each day riding on vans full of disabled persons and requiring them to live in congregate facilities with other people who have disabilities constitutes discrimination. Likewise, forcing these Plaintiffs in 2010 into more restrictive, congregate settings, where they will be forced to spend their days isolated from nondisabled persons, will generate the same feelings of
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6:10-cv-00767-TMC Date Filed 04/29/10 Entry Number 12-1 Page 11 of 37

inferiority that black children experienced attending segregated schools in the 1950's. This discrimination may affect their hearts and minds in a way unlikely to ever be undone. Brown v. Board of Education of Topeka , 347 U.S. 483, 494 (1954). If Plaintiffs are involuntarily forced into congregate programs, they will experience this same kind of stigmatic harm every time they are forced to ride on segregated vans, to attend segregated workshops, and to live in segregated residential settings, where they will be isolated from their families and their nondisabled friends.2 Exhibits 1, 4 and 9. Affidavits/Declarations of Carolyn Brown, Barbara Morgan and Chip E.
In Briggs v. Elliott, the district court erroneously determined that the rights of black children would be protected simply by building new segregated schools that were just as nice as the schools white children attended. 103 F.Supp. 920, 921-922 (S.C.D.C. 1952). The United States Supreme Court dispelled that idea, clearly declaring that separate is not equal. Brown v. Board of Education, 394 U.S. 294 (1954). It is the lack of opportunity to be integrated into community affairs and the stigma of segregation that is discriminatory, not the condition of the physical facilities in which persons with disabilities spend their days. Because of the Supreme Court s holding in Brown and its progeny, persons of all races are now accepted as full citizens in the workplace, in schools and political affairs, only because

2

Plaintiffs do not challenge in this lawsuit the right of other persons with disabilities and

their families to choose to receive services in a segregated, congregate setting along with

other disabled persons. Just as some students may legally choose to attend a segregated

school, some persons who have disabilities choose to attend a congregate program where

interaction with nondisabled persons is limited. The United States Supreme Court clearly

recognized in Olmstead that the integration mandate applies only where affected

persons do not oppose such treatment. Id. at 607. Nothing in the ADA or its

implementing regulations requires termination of institutional settings for persons not

able to benefit from community settings. Id. at 601-602.

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federal courts recognized the harm that comes from social stigma and segregation. The right of persons who have mental retardation and related disabilities to live, work and play alongside their non-disabled neighbors, friends and family is no less important a civil right than the right of children of all races to attend integrated public schools. The United States Supreme Court declared in Brown that separate is not equal in segregated classrooms. Id. Likewise, the Supreme Court declared in Olmstead that separate is not equal when persons who have disabilities are involuntarily isolated and stigmatized because of their disabilities. Plaintiffs are likely to succeed on their claim that involuntarily forcing them out of their homes and into group settings with other disabled persons, where they will be stigmatized, violates the ADA and the integration mandate in Olmstead.
b. Plaintiffs are Likely to Succeed on the Merits of their Title II Claim . Plaintiffs are likely to succeed on the merits because they are qualified persons with disabilities who can be served in the community, they desire community placement instead of services in an institution, and the requested reasonable modification to provide such services in the community can be accomplished at less cost than the cost of providing the services they would need in segregated, institutional settings. Olmstead, 527 U.S. at 591-592. For many years, SCDDSN has provided the services Plaintiffs needed to avoid institutionalization. However, on January 1, 2010, SCDDSN adopted new service limitations for the MR/RD Medicaid waiver program that reduce home-based services. These changes will drive these individuals into more expensive institutional placements. This plan, on its face, violates Olmstead and the ADA. While Defendants claim that the cuts to community services are necessary in light of budget constraints, the reductions in home-based services
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will actually result in significant increases in costs to the state due to the high cost of institutional placements and forcing waiver participants into ICF/MR facilities in order to receive respite services. Exhibits 10 and 11. Comparison of MR/RD Medicaid waiver services and costs for 2004-2009 (Year 5) and 2010-2015 (Year 1). There is no evidence that Defendants performed a cost analysis to consider the costs of services that would be required in the place of home based services being reduced before they approved amendments to the MR/RD Medicaid waiver. Further, the Defendants claims of these changes being required by budget shortages are inconsistent with their decision to increase the reimbursement rates for services provided in institutional settings (for instance, the rate paid to SCDDSN for institutional respite services increased by 70%, from $157 a day to $270 a day, while defendants refuse to fund more integrated and significantly less costly services can be provided in the community). Id. The increase in more costly institutional services is demonstrated in the estimates Defendants themselves provided to CMS (the federal Medicaid agency) in the MR/RD Medicaid waiver application showing the expected use of institutional respite services. Id. In the final year under the waiver that expired in 2009, Defendants informed CMS that only 30 waiver participants would require institutional respite services. Each of these persons would spend, according to SCDDSN, an average of 22 days of an ICF/MR. Exhibit 10. (Chart showing Year 5 use of each waiver service.) In the renewed waiver that took effect on January 1, 2010, however, Defendants reported to CMS that 126 waiver participants would require respite services in ICF/MR facilities and that each of these waiver participants would spend, on average, 33 days a year in these institutions. Exhibit 11. Chart showing List of Services, MR/RD Waiver2010-2015,Waiver Year 1. This change represented a more than four fold increase in the number of waiver participants having to
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resort to institutional respite services. Under the amended waiver program, the number of days each participant is expected to use this institutional service is expected to increase by 50% during the year which began on January 1, 2010. Id. (Chart showing year 1 use of services for waiver application covering 2010 to 2015). In addition, under the amended waiver, SCDDSN reports that 38 additional waiver participants will require institutional respite services in nursing homes, spending an average of 22 days a year in these institutional facilities, instead of receiving respite services at home. Exhibit 11. Chart showing List of Services, MR/RD Waiver2010-2015,Waiver Year 1.
In Olmstead, the United States Supreme Court held that States are required to provide community-based treatment for persons who have disabilities when the State s treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with disabilities. 527 U.S. at 607. The integration mandate is violated where the state chooses to administer services by allocating resources to more restrictive settings. Disability Advocates, Inc. v. Paterson, 598 F.Supp. 289, 318 (E.D.N.Y. 2009) and Disability Advocates, Inc. and the United States of America v. Paterson, Case No. 1:03-cv-3209 (E.D.N.Y. March 1, 2010).
It is undeniable that the State s professionals have determined that Plaintiffs can be served in their communities. Indeed, for years, SCDDSN and SCDHHS certified to the federal government that the Plaintiffs needs could be safely met outside of an institutional setting. Defendants certified that Plaintiffs needed the services which are the subject of this lawsuit to protect their heath and safety. Plaintiffs do not object to receiving services in the
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community. Plaintiffs Chip E. and Michelle M. have lived in their homes with their families, and Peter B. in his own apartment, for years with services provided through the Medicaid waiver. The services Plaintiffs request have been provided for many years, at less cost than institutional care.
Congress enacted the ADA to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities. 42 U.S.C. § 12101(b)(1). Title II of the ADA provides that unnecessary segregation and unjustified isolation of persons who have disabilities constitutes discrimination. Olmstead at 582, 600601. The integration mandate requires States to provide services in the setting appropriate to their needs. 28 C.F.R. § 35.130(d). The most integrated setting is defined as a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible. 28 C.F.R. pt. 35 app. A at page 571 (2009). Olmstead at 592. Ending the isolation and segregation of persons who have disabilities is one of the principal purposes of Title II of the ADA. Arc of Wash. State Inc. v. Braddock, 427 F.3d 615, 618 (9th Cir. 2005).
Persons, like Plaintiffs, do not need to wait until they are segregated into an institutional setting and isolated from nondisabled persons to protect their rights under the ADA and Section 504: the risk of institutionalization, in and of itself, is sufficient to demonstrate a violation of Title II. Fisher v. Oklahoma Health Care Authority, 335 F.3d 1175 (10th 2003). In Fisher, the court reasoned that the protections of Title II would be meaningless if plaintiffs were required to segregate themselves by entering an institution before they could challenge an allegedly discriminatory law or policy that threatens to force them into segregated isolation...nothing in the Olmstead decision supports a conclusion that
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institutionalization is a prerequisite for enforcement of the ADA s integration requirements. Id. at 1181.
In North Carolina, a federal district court judge granted emergency injunctive relief, prohibiting the state from reducing home-based services to persons who have a dual diagnosis of mental retardation and mental illness, just three days after the plaintiffs in that case filed their complaint alleging violation of the ADA where the plaintiffs were at risk of having to move from independent apartments to group home or ICF/MR facilities. Marlo M. v. Cansler, supra. That court subsequently found that all four criteria for a preliminary injunction were met entitling them to the extraordinary remedy of a preliminary injunction. It is noteworthy that the United States Department of Justice filed an amicus in that case. The district court concluded that the plaintiffs had shown a likelihood of success on the merits of their ADA claims because they showed that the State s termination of funding will force Plaintiffs from their present living situations, in which they are well integrated into the community, into group homes or institutional settings. Marlo M. v. Cansler, No. 5:09-cv535, 2010 WL 148849 (E.D.N.C. Jan. 17, 2010). See also Ball v. Rogers, No. 00-67 (D. Ariz. April 24, 2009) (holding that failure to provide plaintiffs with needed services threatened Plaintiffs with institutionalization, prevented them from leaving institutions, and in some instances forced them into institutions in order to receive their necessary care in violation of the ADA and Rehabilitation Act); Mental Disability Law Clinic v. Hogan, No. 06-6320 (E.D.N.Y. Aug. 28, 2008) ( even the risk of unjustified segregation may be sufficient under Olmstead ) ; M.A.C. v. Betit, 284 F.Supp. 2d 1298, 1309 (D. Utah 2003) (adopting Fisher s position that a plaintiff need not currently be institutionalized to bring
16

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integration regulation claim). Previously, Michelle M. received respite services at home, at a cost of $70 per day.
This option was eliminated on January 1, 2010, and a cap of 68 hours a month of homebased respite services was imposed on waiver participants. However, under the amendments which went into effect in January, MR/RD waiver participants can receive an unlimited number of days of respite care in ICF/MR facilities operated by SCDDSN and its local DSN boards. Because of her complex medical needs and behavioral challenges, Michelle would require services in a SCDDSN Regional Center, which would cost at least $320 per day, if her home placement fails. Exhibits 4, 5 and 23. Affidavits of Barbara Morgan and Mel Patterson, M.D. and Annual Report of SCDDSN.
As in Marlo M., There is no question Plaintiffs, who have been successfully living in their own homes for numerous years, are deemed eligible for community-based living by the State s experts. Marlo M. v. Cansler, Case 5:09cv00535, Order filed January 15, 2010 at 3 of 5 (Document 35). Also, as in that case [t]ermination of funding by Defendants will force Plaintiffs from their present living situation, in which they are well integrated into the community, into group homes or institutional settings. Id. at 4 of 5. Like the Plaintiffs in Marlo, the services Plaintiffs request can be provided at overall costs savings per year (compared) to alternative placements. Id. at 5 of 5.
Peter B. seeks a very reasonable modification that would restore the minimal hours of adult companion services which he had been receiving under his service plan until July 2009. Exhibit 1, Declaration of Carolyn Brown (Declaration Exhibit 2). These companion services, costing less than $200/week, were terminated by Defendants without regard to Peter
17

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B. s medical needs or the orders of his treating physicians. Instead, the state has offered to enroll Peter. B. in the segregated Workability Center workshop. Peter does not want to attend the workshop and losing his job would be detrimental to his mental health. Exhibits 1 and 14. Declarations of Carolyn Brown and Lennie Mullis. In the Workshop, Peter B. would be isolated from nondisabled persons and segregated with other individuals with disabilities. He would be denied the opportunities of interacting in his community and he is now, because his companion services have been terminated. He is at risk of losing the job he has worked in for twenty years. Exhibits 1 and 14. Declarations of Carolyn Brown and Lennie Mullis. The cost for Peter attending the congregate Workability Center would be more than $220 per week, ten percent more than the cost of the services he is requesting. Peter B. is also at imminent risk of institutionalization, i.e. placement in a group home or ICF/MR, at significantly greater costs to the State. Exhibits 3 and 14. Declarations of Tod Reel, M.D. and Lennie Mullis.
It would likewise not result in a fundamental alteration in the State s programs to continue the services Chip E. and Michelle M. have received for years in their homes in Clinton, South Carolina. These services have allowed Peter B., Chip E. and Michelle M. to remain in the least restrictive setting at significant savings to the State. Exhibits 1, 4, 5 and 9. Affidavits/Declarations of Carolyn Brown, Barbara Morgan Mel Patterson, MD and Chip E. All of these home-based services have been provided for years through the MR/RD Medicaid waiver program. The costs of hospitalization and institutionalization of these Plaintiffs, if these services were discontinued, would greatly exceed the costs of continuing these services in their homes. It is not necessary for Plaintiffs to enter institutions before their right to stay
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out of segregated settings can be enforced by this Court. Defendants have argued in the past that Plaintiffs losses are speculative. The injury is not speculative to Peter B. The decline in his mental and physical condition since his companion services were terminated has already been documented. Exhibits 1, 3 and 14. Affidavits/Declarations of Carolyn Brown, Tod Reel and Lennie Mullis. It is not speculative that Chip E. and Michelle M. could not survive without around-the-clock services. Exhibits 4, 5 and 9. Affidavits/Declarations of Barbara Morgan, Mel Patterson, MD and Lennie Mullis. This Court should not require the Plaintiffs to fall on their face before ordering the State to continue their services, the elimination of which would violate the clear mandates of the ADA. Arguing that the risk of discrimination to Plaintiffs is speculative is akin to suggesting that black children must first attend segregated schools, and prove personal harm, before the court will enforce their right to be protected from the discrimination caused by segregation. Nothing in the ADA or Olmstead suggests that people with disabilities have to be removed from their less restrictive placement and have their health jeopardized by congregate placement before their rights to live in an integrated setting will be protected. Both Peter B. and Michelle M. have lived in institutions where they have experienced such stigma. Their conditions deteriorated when they lived in a congregate setting. Exhibits 1, 2, 3, 4 and 5. Declaration of Carolyn Brown, Testimony of Jackie Walker, Declarations of Tod Reel, MD and Mel Patterson, MD. SCDDSN moved them from congregate settings, determining that those placements were inappropriate and overly restrictive. SCDDSN determined that they could be successfully served in the community and they have both benefitted from this less restrictive setting. Exhibits 3 and 5. Affidavit of Mel Patterson, MD and Declaration of Tod. Reel, MD. Forcing Peter B. and Michelle M. back into an institutional setting to determine whether they would again suffer
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the same harms would be a cruel experiment. Although Chip E. has never lived in an institution before, it is undeniable that he will
not be able to survive at home without the personal care and companion services he requests. Exhibit 9. Affidavit of Jimmy Chip E. He cannot move his arms or his legs. Chip E. cannot prepare a meal, he cannot even move a glass of water to his lips. He is able to drive his wheelchair with his mouth, once his personal care attendant moves him from his bed to the chair. He uses his computer with a device his care attendant places on his head. There can be no doubt but that Chip E. will require institutional services if his personal care attendant services are reduced. If his personal care attendant hours are reduced, he will be forced to sleep in his wheelchair.
What Plaintiffs request from this Court is simple: the right to continue to live in their homes and communities without the fear that comes from the existing and very real threat of being forced to move to an institutional setting. Marlo M. v. Cansler, supra. The congregate services Defendants wish to replace home-based services with are more expensive than the services Plaintiffs want to receive at home. Plaintiffs are likely to succeed on the merits because the Supreme Court has clearly directed in Olmstead, that states are required to provide community-based treatment for persons who have disabilities when the State s treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with disabilities. 527 U.S. at 607. The Plaintiffs meet all criteria for entitlement to community services: they have chosen to live in less restrictive settings, the State has determined that their current
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placements are appropriate and there is strong evidence to support Plaintiffs claims that the requested services can be provided without the State fundamentally altering its programs. The ADA, Section 504 and Olmstead mandate that Plaintiffs be served in the least restrictive setting, making it likely that they will succeed on the merits because, as discussed below, the Plaintiffs have made a clear showing of irreparable harm, the balance of the equities tip in their favor and the public interest would be served by this court issuing an injunction. 2. Plaintiffs will suffer irreparable harm if a preliminary injunction is not granted.
All of the Plaintiffs are expected to suffer physical harm as a result of the reduction of waiver services. In addition, the emotional injury to Plaintiffs has already been significant and irreversible. These injuries cannot be compensated by money damages. It has been documented that soon after Peter B. s companion services were terminated, his anxiety and depression increased. Exhibits 1 and 14. Declarations of Carolyn Brown and Lennie Mullis. Peter B. lost nine pounds between the time that his companion services were terminated and this lawsuit was filed. Id. This physical deterioration is likely to exacerbate his diabetic condition without the supervision of his specialized diet and exercise provided by his companion. This will result in higher medical costs to the State and will likely require him to move to a group home, at significantly greater costs to the Medicaid program. Id. This regression was predicted by Peter B. s treating physicians, but ignored by the Defendants. Exhibit 1, 2 and 3. Declaration of Carolyn Brown, Testimony of Jackie Walker and Declaration of Tod Reel, MD. Without necessary services, Peter B. s condition will deteriorate further, preventing him from continuing to live in his independent apartment and forcing Peter into a congregate residential setting. Id. Peter B. has lived in an independent
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apartment for more than 20 years. An SLP setting has been repeatedly determined by the State to be the least restrictive setting appropriate to meet his needs. But each day Peter B. comes closer to requiring services in a congregate setting, as his medical condition deteriorates and the likelihood of losing the job he has enjoyed for twenty years increases. He would then be forced to attend a congregate workshop where nearly 200 persons with disabilities are segregated and isolated from the community in a metal building that was formerly an industrial site. Exhibit 12. Spartanburg Herald Journal, Sept. 24, 2007, Cleanup process gets under way at former Holmberg Electronics plant: But much less of a problem than some, officials say at http://www.goupstate.com/article/20070924/NEWS/709240322 and Greenville News, July 5, 2007: Charles Lea Center training program to expand at http://www.goupstate.com/article/20070705/NEWS/707050335. The revenues from the labors of these mentally retarded trainees is paid to the SCDDSN pursuant to the South Carolina Appropriations Act of FY 2010. Exhibit 13. Part 1B, Section 24-J16, 24.1. Peter B. s earnings would be significantly reduced if he lost his competitive employment. Even more importantly, he would lose the pride in his job that he has enjoyed as an employee of Palmetto Textiles. Exhibits 1 and 14. Declarations of Carolyn Brown and Lennie Mullis.
Chip E. lives in absolute terror of his worst nightmare coming true - being forced out of his home and moved into a congregate residence in order to receive the care he requires. Exhibit 9. Affidavit of Chip E. Money cannot compensate Chip E. for this injury. If Chip E. resists moving to an ICF/MR, he will be forced to sleep in his wheelchair, because of the reduction in his personal care attendant hours. SCDDSN has notified Chip E. that they intend
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to reduce his personal care attendant hours from eight hours a day to four hours a day. The risk of Chip E. developing bed sores will increase exponentially if his personal care attendant services are reduced. If Chip E. is forced to move to an institution, he will also lose the opportunities he has in his home community to participate as a valued member of the Clinton High School Football team. Instead of helping the racing team diagnose engine trouble, he will likely be forced to sit in an assigned seat around a table in a SCDDSN workshop with persons who have mental retardation, where the revenue from his labor will be paid to SCDDSN. Exhibit 13. South Carolina Appropriations Act 2009-2010, Part IB, Section 24J16, 24.1. He cannot move his limbs, cannot get out of the bed without hands-on assistance and cannot feed himself. Chip E. will be forced to have people he has not selected to touch him and to provide hands-on assistance with the most intimate activities of daily living. He will no longer have daily contact with his family members. Any discretionary spending will end. Chip E. will be required to pay all but $60 of his monthly income to the State if he is placed in an ICF/MR. He will be required to pay for clothing, toiletries and entertainment from that $60 a month. With the changes put into effect on January 1, 2010, Chip E. lost access to adaptive communications equipment. Although the equipment is covered by the waiver, a speech and language professional s evaluation is required to obtain a device. All speech and language services were eliminated from the MR/RD waiver on January 1, 2010. These services would be provided to Chip E. in an ICF/MR if he were forced to move into this more restricted and structured setting.
Michelle M. is likely to suffer the same unexplained physical injuries she experienced at Whitten Center, before her parents brought her back home from the institution. Exhibit 4
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and 5. Affidavits of Barbara Morgan and Mel Patterson, M.D. She is at risk of choking from aspiration due to the recent elimination of speech and language services. Exhibit 5. Affidavit of Mel Patterson, MD. In a congregate setting, Michelle M. will be at risk for infections, particularly of her stoma where she is fed through a tube into her stomach. Michelle M. pulls out her feeding tube when she tries to stand up while being fed. She will likely have to be restrained in a chair if she is placed in an institution. Exhibit 14. Declaration of Lennie Mullis. Michelle M. is at risk of falling unless she has hands on assistance with walking. Because of Michelle M. s behavioral issues and loud outbursts, she is at great risk in a congregate setting for abuse by other residents, as well as by frustrated and frequently poorly trained staff members. Id. Michelle is totally unable to defend herself. Exhibits 5 and 14. Affidavit/Declaration of Mel Patterson, M.D. and Lennie Mullis. Institutional turn-over of staff will place her at risk of harm, because fill-in staff members will not be familiar with her physical needs. Being removed from her home will likely lead to an increase Michelle s symptoms of depression and anxiety. Exhibits 4 and 14. Affidavit of Mel Patterson, MD and Declaration of Lennie Mullis.
Federal courts have recognized emotional harm as irreparable injury, just as the United States Supreme Court recognized stigma and emotional injury as harm in both Olmstead and Brown. In Crabtree v. Goetz, the district court recognized that forcing the plaintiffs into institutions would cause mental depression, a shorter life expectancy, and for some, even death. No. 08-cv-0939, 2008 WL 5330506 (M.D. Tenn. Dec. 19. 2008) at *30. Finding irreparable harm to the plaintiffs in that case, that court enjoined the state from implementing reductions to home based waiver services despite CMS (the federal Medicaid
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agency) having approved the reductions. The emotional harm to the plaintiffs in that case was easily recognized by the court: The evidence at this point is strong that Plaintiffs will suffer regressive consequences if moved, even temporarily. Plaintiffs have behavioral and special needs, and benefit from a stable environment and personalized treatment. Id. at *25.
The federal court in Long v. Benson found each day in an institution would be irreparable harm due to those plaintiffs perception of quality of life in an institutional setting. No. 08-cv-26, 2008 WL 4571903*2 (N.D.Fla. Oct. 14, 2008). In that case, a district court in Florida took into account the emotional impact of institutionalization of that plaintiff, finding: this will inflict an enormous psychological blow...each day he is required to live in the nursing home will be irreparable harm. A settlement agreement was reached in that case which will require the state to spend $27 million on new waiver slots over a 12 month period. No. 4:08-cv-26-RH-WCS (N.D.Fla. Sept. 15, 2009).
Psychological harm was also recognized as irreparable injury in Marlo v. Cansler, No. 5:09-cv-535, 2010 WL 148849 (E.D.N.C. Jan. 17, 2010). In Ball v. Rodgers, the Arizona district court found irreparable harm where the state created mental and physical distress by failing to provide home based services instead of forcing plaintiffs to enter more expensive nursing homes. 4:00-cv-00067-EHC.(D. Ariz. April 24, 2009). In that case the court held that the state violated the ADA by failing to provide services in the most integrated setting appropriate to the needs of plaintiffs.
Plaintiffs in this case will suffer irreparable injury if Defendants are permitted to eliminate or significantly reduce their funding and services. Plaintiffs will be forced to exchange their safety and independence of their individual community placements, where
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they have been able to receive regular and reliable treatment and care, for more restrictive and inappropriate institutional or congregate settings that do not meet their needs. In addition, the entire system of care that Plaintiffs have enjoyed for years will be dismantled and is in danger of being permanently lost. 3. The balance of the equities weighs in Plaintiffs favor.
Once irreparable injury is shown, "the next step then for the court to take is to balance the likelihood of irreparable harm to the plaintiff from the failure to grant interim relief against the likelihood of harm to the defendant from the grant of such relief." Multi Channel TV Cable, supra citing Direx Israel, 952 F.2d at 812. In assessing whether the Plaintiffs have met this burden, the district court has a "duty . . . to balance the interests of all parties and to weigh the damage to each." See L.A. Mem'l Coliseum Comm'n v. Nat'l Football League, 634 F.2d 1197, 1203 (9th Cir. 1980).
Plaintiffs seek a preliminary injunction which would require Defendants to simply continue paying for services they have determined for years to be medically necessary and have included in Plaintiffs plans of care. The services Plaintiffs have requested would cost less than the institutional services they will need if this injunction is not granted. Injury to the Defendants will be minimal, if there is any real harm at all. In actuality, according to the cost estimates provided by SCDDSN in the waiver amendments, the services Plaintiffs request will be less costly than the services that will be needed if Plaintiffs are forced to resort to congregate services. Exhibits 10 and 11. Waiver Year 5, 2004-2009 MR/RD Medicaid Waiver, Waiver Year 1, MR/RD Medicaid Waiver 2010-2015.
Compared to the harm to Defendants, however, the harm to the Plaintiffs is extreme. 26

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It includes both likelihood of serious risk of both physical injury and psychological harm. The Plaintiffs will be forced from their homes into congregate day and residential programs. Their living arrangements will not be easily reestablished once dismantled. Peter B. will lose his apartment if his health continues to decline. All but a small portion of his income will be paid toward the costs of his care in a congregate residence. He will likely be forced to move from his apartment complex, where he has established friendships with neighbors, into a group home that may be located in another part of the state. Most importantly, Peter B. will likely lose his job if his mental and physical condition continues to decline. If he is forced to attend the congregate workshop, Peter B. would be subjected to the same effects of discrimination experienced by black children who were told they were not allowed to attend white schools. Peter B. will suffer the social stigma, isolation and emotional harm that results from segregation. If Peter B. s condition continues to decline, as expected, when he loses his job, he will be forced to attend a congregate workshop, at a cost of more than $80 a month more than his companion services cost. The cost of a group home will be at least double the cost of care in his current setting. As Peter B. s diabetes progresses, without the supervision and exercise provided by his companion, his medical costs will increase. Exhibit 3. Declaration of Tod Reel, M.D. The injury to the Defendants is by far outweighed by the injury Peter B. will experience, especially since the services he requests cost less then those he will need if his companion services are not restored.
If Chip E. does not receive the personal care attendant services SCDDSN has determined for years that he needs, he will develop bed sores and the resulting infections which will be more expensive to treat than the cost of his care at home. Chip E. would lose
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the ability to access adaptive communications equipment, because a speech and language therapist must perform and evaluation and recommend the device. All speech and language services were eliminated from the MR/RD Medicaid waiver on January 1, 2010. Chip E. s losses will include not only the loss of living in the home where he was born, but the loss of his friendships in the Clinton community. He would be placed in the next available bed, which is likely to be distant from his home. Not only would this be a loss for Chip E., but his absence from the community would be a tragedy for the young men whose notions about people with disabilities have been irrevocably changed by working with him on the Clinton High School football team. Chip E. has set an example to teach them about overcoming obstacles and his defeat by being forced from his home would send a terrible message to them about the value our State places on the lives of people who have disabilities. Chip E. has already suffered psychological trauma by the threat of being forced from his home and isolated in a congregate facility, perhaps far from his family and friends. Exhibit 9. Affidavit of Chip E. The benefit to the State of reducing Chip E. s home-based services are far outweighed by his losses, which cannot be compensated by money damages. The homebased services Chip E. requests are considerably less expensive than the institutional services he will require if an injunction is not granted. There is no justifiable benefit to the State in reducing Chip E. s services.
The harm Michelle M. is likely to experience is a repeat of the unexplained injuries she experienced before when she lived in a SCDDSN Regional Center. Exhibit 4. Affidavit of Barbara Morgan. She is unable to communicate verbally, either to make her needs known or to report abuse or neglect. Michelle M. s medical records document that she has received
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excellent care at home, at considerably less cost than SCDDSN was paying when she lived in a Regional Center. Exhibit 5. Affidavit of Mel Patterson, M.D. Michelle M. is at risk of aspiration and no longer has access to swallowing evaluations, since Defendants terminated all speech and language services in January. With the help of the $525 monthly stipend SCDDSN has paid since she returned home from Written Center, her parents moved to a modest home large enough to accommodate their adult daughter s needs. Exhibit 4. Affidavit of Barbara Morgan. They would be unable to maintain this home, where the three of them share expenses, if Michelle M. were to return to an institution. All but $60 of Michelle M. s monthly income would be paid to SCDDSN toward her cost of care. Michelle M. would suffer regressive consequences if moved, even temporarily. She has behavioral and special needs and Michelle M. has benefitted from a stable environment and personalized treatment.
Information in her medical records indicates that Michelle M. has conditions and behaviors which make her a poor candidate for successful transition to a Regional Center. Exhibits 5 and 14. Affidavit of Mel Patterson, M.D. and Declaration of Lennie Mullis. Officials from SCDDSN called Michelle M. s parents at 9:00 one evening more than ten years ago, asking them to take her home. Upon information and belief, this transition occurred as a result of investigations of abuse and neglect at the facility.3 Exhibit 17. Investigation of reports of abuse and neglect at Written Center. After Michelle returned home, she attended a congregate day program supervised by SCDDSN until that day

3

A Written Center employee was recently arrested for assaulting one or more residents

who has/have mental retardation. Exhibit 16. Clinton newspaper article, arrest of Written

Center employee.

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program discharged her, telling her parents they could not meet her needs because of her tube feeding. The costs to the State would be greater if Michelle is returned to an institution, where SCDDSN admitted before she does not belong. The cost to Michelle and her family could well be her life.
Balancing the equities in this case, the scale does not tip, it plunges toward these Plaintiffs. The only recognizable harm to the Defendants would be the loss of the unfettered discretion to determine where MR/RD waiver participants will live, without regard for the integration mandate of the ADA and Olmstead. The South Carolina General Assembly recognized this federal integration mandate in South Carolina Code of Laws § 44-26-140.4 Restricting the arbitrary and unfettered discretion of SCDDSN to force Plaintiffs into more restrictive services is a restriction on State power that should be ordered by this Court, because continuing to discriminate against persons who wish to receive services in their own homes instead of in an institution violates federal law, as well as the intention of the South Carolina General Assembly as expressed in state law. 4. Granting an Injunction is in the Public Interest.
The public interest weighs strongly in favor of an injunction in this case. Requiring

4

This section requires SCDDSN to administer care and habilitation skillfully, safely, and

humanely, with full respect for the client's dignity and personal integrity. The department

was directed by the General Assembly to make every effort, based on available

resources, to develop services necessary to meet the needs of its clients. The General

Assembly in this code section prohibited SCDDSN from providing services in a setting

that is more restrictive than is warranted to meet his needs if alternative care is

available. The General Assembly also directed SCDDSN in this statute to move clients

from: (1) more to less structured living; (2) larger to smaller facilities; (3) larger to

smaller living units; (4) group to individual residence; (5) segregated from the

community to integrated into the community; and (6) dependent to independent living.

South Carolina Code of Laws § 44-26-140.

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state agencies and public officials to comply with federal law is always in the public interest. The integration mandate of the ADA and Olmstead leads to one conclusion: failing to provide these individuals with services in the least restrictive setting, where they are integrated into their communities constitutes discrimination that will not be tolerated by the federal courts.
Providing Plaintiffs home-based services at less cost compared to institutional services benefits taxpayers. None of these individuals can be served at a lower cost in a congregate residential setting funded by SCDDSN compared to their cost at home. The costs for every one of the Plaintiffs will increase if their home based services are not restored or continued. These reductions were made by Defendants under the guise of budget reductions, at the same time that SCDDSN simultaneously increased the number of waiver participants requiring institutional services and increased the reimbursement rate for institutional respite by 70%. Defendants failed to perform even a cursory cost analysis considering the costs of institutionalization and increased attendance in congregate services in workshops before approving the reductions. By its own admissions, the changes implemented by SCDDSN on January 1, 2010 will result in more than four times the number of waiver participants having to turn to the ICF/MR institutions for respite services. Exhibits 10 and 11. Chart of Year 5 for MR/RD Medicaid waiver services and Chart for Year 1 attached to amended MR/RD Medicaid waiver application. Not only will more waiver participants be institutionalized for waiver respite services at a daily cost of nearly four times the cost of home-based daily respite under the old waiver, because of the reductions of home-based support, SCDDSN estimates that each waiver participant using institutional respite will spend 50% more days in
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an ICF/MR than they spent in 2009. Id. The public has an interest in providing cost effective services in the least restrictive environment, especially where the costs for institutional respite services under the amended waiver will increase by more than $1 million from the less restrictive services provided last year. Id.
In any event, there is no evidence that the financial cost to the taxpayers was actually reduced when personal care attendant, adult companion, occupational therapy, physical therapy, speech and language therapy, nursing and daily respite services were reduced or eliminated through amendments to the MR/RD Medicaid waiver program on January 1, 2010. These services were paid for by local DAN Boards which receive a capitate rate from SCDDSN for each waiver participant being served in that county. Since January 1, 2010, the number of hours of services these local DAN Boards are responsible for providing has decreased significantly, yet the amount SCDDSN pays the local DAN Boards has remained the same. There has been no corresponding reduction in the capitate rate SCDDSN pays the local Boards since the amendments were put into place on January 1, 2010. Thus, there can be no real cost savings to the public fisc. SCDDSN is paying the same capitate rate for each waiver participant as it paid before January 1, 2010. Services have been reduced, but costs per capita have remained the same.
The public is well served by expending funds to provide MR/RD Medicaid waiver services because each state dollar spent will be matched with four federal dollars. This infusion of federal dollars to South Carolina, if federal Recovery Act funds had been spent as intended, would have a positive effect of creating and preserving jobs. A recent study published by the Direct Care Alliance, Inc. reported that Home health aide is the third-
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fastest growing job category in the U.S. and personal and home care jobs the fourth-fastest. Exhibit 19. Howes, Candace, The Best and Worst State Practices in Medicaid Long-Term Care, April 2010 at 1. According to that report, The number of home and community-based direct care workers recently surpassed the number of nursing assistants in nursing homes. Id. South Carolina has one of the highest unemployment rates in the country. SCDDSN has admitted that thousands of employees previously funded by the agency have lost their jobs due to budget reductions, while the federal funding for these programs has not decreased. Exhibit 21 and 22. Letter from David Goodell and Letter from Beverly Buscemi and Commissioners. The Direct Care Alliance report placed South Carolina in the category of states with the worst-performing record for providing home and community based services, compared to institutional services. Exhibit 19 at 4. Direct Care Alliance Report. That study compared long term care services for elderly and physically disabled persons, finding that South Carolina was in the category of states that provide almost exclusively nursing home care services to below average numbers of people. Id. at 4. For example, South Carolina provides only 3 persons out of 1,000 residents with home and community based services, whereas North Carolina provides 7.6 persons out of 1,000 residents with these less restrictive services. When comparing services in a nursing home, South Carolina provides nursing home services to 3.7 out of 1,000, whereas North Carolina provides nursing services to 4.8 persons out of 1,000. Id. at 3 and 4.
In another study of home-based Medicaid services, the American Association of Retired Persons (AARP) agreed that South Carolina focuses on institutional services for elderly and disabled persons, instead of providing home-based services. That study reported
33

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that compared to the United States average, South Carolina allocates a greater portion of its long term care spending on institutional services. Exhibit 20. Kassner, Enid, AARP, A Balancing Act: State L ong Term Care Reform. (As with the Direct Care Alliance, the AARP study reported on Medicaid programs for elderly and disabled, not MR/RD populations, but both studies confirm the State s failure to integrate persons who have disabilities into the community in the least restrictive setting.)
The public interest would be served by providing jobs to unemployed South Carolinians. The jobs of many South Carolinians who worked as caregivers for persons who have disabilities have been terminated due to budget reductions. Exhibits 21 and 22. Letter from David Goodell and letter from Beverly Buscemi and commissioners. When these direct care workers are given the opportunity to provide caregiving services, the unemployment rate will decline, with fewer tax dollars being used to pay unemployment benefits.
What is even more important, on a larger, systemic scale, is the chilling effect the actions taken by Defendants (to reduce home based services) has had and will continue to have on the efforts to move persons out of SCDDSN Residential Centers and other ICF/MR facilities. Last year, SCDDSN spent 18% of its budget providing services in its Regional Centers to just 3% of the consumers served by the agency. SCDDSN pays $320 per day for institutional care, compared to only $138 per day for care in homes and communities under the MR/RD Medicaid waiver. Exhibit 23 at 47. FY 2008-2009 Annual Accoutability Report of SCDDSN. When the agency was required to cut its budget in February 2010, it chose to eliminate all home based services, rather than reducing funding to institutional services. There was no attempt to reduce costs by offering incentives to institutionalized persons who
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might have chosen to leave these more expensive settings for less expensive home-based services. If instead of keeping its institutional beds full, SCDDSN had offered quality services in homes and communities, where parents could be assured that safeguards would be provided to maintain the health and safety of these individuals once they left the Regional Centers, many would voluntarily choose a less restrictive, less costly setting. Instead of offering well-funded and secure home-based options to persons now in the institutions, Defendants chose to punish the families who either returned their children home from the institutions or saved the State millions by never institutionalizing their family member in the first place. Residents of the SCDDSN Regional Centers were protected from these draconian budget reductions. People who chose less expensive home-based services were not protected. The families who had chosen to receive home-based services from providers who were not DAN Boards were the targets of the budget reductions. This commitment by SCDDSN to maintaining its institutional facilities sends an important message to any family considering moving their loved one out of an institution: they cannot rely upon promises from the State to provide home-based services as an alternative to institutionalization. When families like Michelle M. s were asked to move their child out of Written Center, the State made promises that are now being broken. If the State is ever to restructure its system so as to comply with the integration mandate of the ADA and Olmstead, it must provide reliable, safe and adequate services in the community. Families must feel secure that these services will be continued and that they will be reasonably supported, as promised. The public interest is served by requiring the State to assure families that their home-based services are secure so as to avoid a stalemate of institutionalized persons remaining in these most expensive facilities out of fear of loss of services if they leave the Regional Centers and
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ICF/MRs.
V. CONCLUSION
Plaintiffs have shown that they meet all four criteria for this Court to issue a preliminary injunction prohibiting SCDDSN from reducing MR/RD Medicaid waiver services and restoring those services that Plaintiffs have lost. Plaintiffs seek a Preliminary Injunction to enjoin Defendants from reducing or terminating Plaintiffs services and they request that this Court issue an order requiring Defendants to pay for those home-based services which are determined that Plaintiff s treating physicians to be medically necessary, up to the cost of care in an ICF/MR.
Respectfully submitted by: s/ Patricia L. Harrison, Fed ID 6963 Patricia L. Harrison 611 Holly Street Columbia, SC 29205 803-256-2017 Email: plh.cola@att.net

Dated: April 29, 2010

s/ Kenneth C. Anthony, Jr., Fed ID 1132 Kenneth C. Anthony, Jr., Anthony Law Firm PO Box 3565 Spartanburg, SC 29304 864-582-2355 Email: kanthony@anthonylaw.com Attorneys for the Plaintiffs

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LIST OF EXHIBITS

Exhibit 1. Declaration of Carolyn Brown

Exhibit 2. Testimony of Jackie Walker, service coordinator, at fair hearing of Peter B.

Exhibit 3. Declaration of Tod Reel, M.D.

Exhibit 4. Affidavit of Barbara Morgan

Exhibit 5. Affidavit and letter of Mel Patterson, MD

Exhibit 6. South Carolina Legislative Audit Council audit of SCDDSN, December 2008

Exhibit 7. White House Press Release re 2009 as Year of Community Living

Exhibit 8. Exhibit 9.

Statement of Thomas Perez re Olmstead enforcement Affidavit of Chip E.

Exhibit 10. List of Services, MR/RD Medicaid Waiver 2004-2009, Waiver Year 5

Exhibit 11. List of Services, MR/RD Medicaid Waiver, 2010-2015, Waiver Year 1

Exhibit 12. Newspaper articles re Workability Center

Exhibit 13. South Carolina Appropriations Act for FY 2009-2010, Part IB, Section 24 Exhibit 14. Declaration of Lennie Mullis

Exhibit 15. Minutes of meeting of South Carolina Budget and Control Board, Sept. 2009

Exhibit 16. Clinton Newspaper article re arrest of Written Center employee

Exhibit 17. 1994 investigation of Written Center

Exhibit 18. South Carolina Code of Laws 44-26-140

Exhibit 19. Direct Care Alliance Report

Exhibit 20. AARP, A Balancing Act: State Long Term Care Reform, April 2009

Exhibit 21. Letter of David Goodell

Exhibit 22. Letter of Beverly Buscemi and Commissioners

Exhibit 23 Annual Accountability Report of SCDDSN FY 2009

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 6:10-cv-00767-TMC Date Filed 11/24/10 Entry Number 71 Page 1 of 25

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA GREENVILLE DIVISION

Peter B., Jimmy “Chip” E. and Michelle M.,
Plaintiff,
vs.
Marshall C. Sanford, Emma Forkner, Beverly Buscemi, Kelly Floyd, The South Carolina Department of Health and Human Services and The South Carolina Department of Disabilities and Special Needs,
Defendants. __________________________________

) Civil Action No. 6:10-767-JMC-BHH

)

)

)

)

)

) REPORT AND RECOMMENDATION

)

OF MAGISTRATE JUDGE

)

)

)

)

)

)

)

The plaintiffs have brought this action seeking declaratory and injunctive relief for

violation of Title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12132;

Section 504 of the Rehabilitation Act of 1973 (Section 54); and 42 U.S.C. § 1983. This

matter is before the Court on the plaintiffs’ motion for injunctive relief pursuant to Fed. R. Civ. P. 65(b).1 [Doc. 12.] The defendants have filed numerous responses [Docs. 18, 19,

28, 47, 70], and the plaintiffs have replied [Doc 44]. The plaintiffs ask the Court to enjoin

the defendants from reducing or terminating certain medical and personal-care services, the

absence of which would allegedly force the plaintiffs from their homes and communities into

disability institutions and other like facilities. In addition to the full briefing of the parties, the

1 There is also a motion to dismiss and a motion to amend Complaint pending in this case. Those outstanding matters remain under consideration and will be resolved shortly.

6:10-cv-00767-TMC Date Filed 11/24/10 Entry Number 71 Page 2 of 25
Court allowed and considered the amici curiae brief filed by Protection and Advocacy for People with Disabilities, Inc., the South Carolina Chapter of the National Academy of Elder Law Attorneys, and South Carolina Legal Services in support of the plaintiffs’ motion. Moreover, a hearing on the motion was held before the Court, on September 28, 2010.
Based upon the parties’ respective representations at both hearing and on motion, the Court has allowed this case some opportunity to be resolved through changed circumstances at the state level. [Doc. 28.] It has become apparent over time that a resolution is now in order.
BACKGROUND The plaintiffs are three individuals who have varying degrees of severe mental retardation and/or related disabilities. Peter B. has mental retardation, hydrocephalus, diabetes and coronary heart disease. (See Pl. Exs. 1, 3.) Chip E. has normal intelligence and severe cerebral palsy and a speech disorder. (See Pl. Ex. 9.) Michelle M. has autism, profound mental retardation, cerebral palsy, a bipolar disorder and is unable to speak. (See Pl. Ex. 4.) The defendant South Carolina Department of Disabilities and Special Needs (“DDSN”) provides services to individuals, like the plaintiffs, with developmental disabilities such as mental retardation and autism, and to some individuals with head and spinal cord injuries. See S.C. Code § 44-21-10 et seq. The vast majority of DDSN’s funding derives from the federal Medicaid program, passed through to DDSN from the state Medicaid agency, defendant South Carolina Department of Health and Human Services (“DHHS”).
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Medicaid funds are used by both of these defendants to provide services to individuals in long-term institutions and to enable individuals to live in the community with appropriate supports. See generally 42 U.S.C. §§ 1396a & 1396n(c). Because some conditions of federal Medicaid law are waived in order to provide certain groups of people with disabilities services in the community rather than in institutions, these programs are referred to as “waivers.” See generally Doe v. Kidd, 501 F.3d 348, 359 (4th Cir. 2007). In other words, qualifying individuals may either choose to live, and receive care, in a state institutional facility or they may “waive” that opportunity and elect to live in the surrounding community, with the aid of in-home medical and personal-care services. Importantly, using Medicaid funds for waiver services, rather than for institutional care, enables eligible recipients to remain in less restrictive settings in compliance with the United States Supreme Court’s decision in Olmstead v. v. L.C. ex rel. Zimring, 527 U.S. 538 (1999), discussed below.
Defendant DDSN operates the waiver relevant to this action: the Mental Retardation and Related Disabilities Waiver (MR/RD Waiver). The MR/RD Waiver is for persons who (1) have an intellectual disability (mental retardation) or a related disability, (2) are eligible for Medicaid, and (3) who need home and community based services in order to live in the community. See generally DDSN MR/RD Waiver Manual, Chap. 1.6. All individuals on the waiver must require a threshold level of care that is similar to that required to receive services in a nursing home. See Doe v. Kidd, 501 F.2d at 351. Notwithstanding, they live in a variety of settings. Id. at 351-352. Some of these settings are small community-based facilities, like a Community Training Home (CTH), which provide residential services. See
3

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id. Some of the settings are homes owned or rented by the individual or a family member. Individuals, who live in their own home or the home of a friend or family member, receive a variety of services to meet their care needs.
In late 2009, DHHS, which is the single state agency responsible for the Medicaid program, sought and received the approval of the United States Department of Health and Human Services’ Centers for Medicare and Medicaid Services (CMS) to amend the waiver to limit or cap certain services. (Def. Ex. 3, Attach A.) The defendants represent that the amendments to the waiver were born out of the indisputably difficult economic climate of severe state budget reductions and further were intended to eliminate disparities between people with similar disability needs and to reduce superfluous and redundant services. (Forkner Aff. ¶ 5-7.) Effective as of January 1, 2010, the amended waiver placed a service use cap, or flat cap, on the number of hours an individual could receive for particular services: Personal Care I and II, Adult Attendant Care, Adult Companion Care, Nursing, and in-home Respite services. Id.
The summary of the capped services, relevant here, are as follows: Personal Care II services were capped at 28 hours per week, or four hours per day. Respite services were also capped, at 68 hours per month, or slightly over two hours per day.
Importantly, these caps affected two of the plaintiffs, Chip E. and Michelle M. (Lacy Aff. at 3-5.) The precise kind and level of services provided each of the plaintiffs both prior to, and after, the waiver amendments has been the source of some disagreement between the parties and the subject of numerous and disparate representations in declarations and
4

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briefs of the same. Corralling the data has been less than a straight-forward process. This is the Court’s best estimation and summary of the evidence, concerning each plaintiff respectively.
Jimmy (Chip) E.

Service
Personal Care II In-home Respite

Before 1/1/2010
52 hours per week 112 hours per month

After 1/1/2010 (proposed/actual)
28 hours per week
68 hours per month

(Pl. Reply at 6-8, Attach. 1 at 22, 37, 47, 49, 51, Attach. 12.) Michelle M.

Service
Personal Care II In-home Respite Institutional respite3

Before 1/1/2010
56 hours per week 28 hours per week2 0

After 1/1/2010 (proposed/actual) 28 hours per week 30 hours per week 0

(Pl. Reply at 11, Attach. 4 at 81, 93, 95.) Much energy could be devoted to outlining the services allegedly now available to
the plaintiffs and the ostensible alternatives, available or not, depending on the arguments

2 The defendants put forward evidence that the plaintiff had up to 240 hours per month. (See Lacy Aff.) The plaintiffs have responded that she was never provided that many hours and that the 30 hours per week allotted in May 2010, was an increase of only 2 hours. (Pl. Reply at 11, Attach. 4 at 81.)
3 The defendants originally submitted testimony that she was provided 2 weeks of institutional respite per year. The plaintiffs have rejoined that no such service has ever been available. (Pl. Reply, Attach. 4 at 81.)
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of the parties. The plaintiffs have done a persuasive job of establishing the hours they have received and the defendants, aside from their original representations, have done little to effectively counter, either in their filings or at hearing. The Court, therefore, has largely adopted the plaintiffs’ evidence concerning services and hours provided, whether discussed specifically herein or not. To the Court, it is sufficient to say that there has been a diminution in service hours for both Chip and Michelle, which, as will be discussed, their treating physicians find significant. More to the point, it is this reduction in hours that the plaintiffs contend will drive them to an institution against their will and hope and in violation of the Americans with Disabilities Act.
The third plaintiff, Peter B., receives services in a DDSN residential placement, as part of a Supervised Living Program II (SLP II). The care needs for individuals in DDSN residential placements are met through the residential habilitation service, during periods of the day when the individual is receiving residential habilitation services. For example, if individuals receiving residential habilitation need assistance with their meals, then the residential habilitation provider is responsible for seeing the need is met. (See Lacy Aff. at 2 & Attach. B.) Those, like Peter, receiving residential habilitation have not had caps placed on the number of hours of Personal Care they can receive, unlike those individuals who live in their own homes. See id., Attach. A. However, Peter contends that 12 hours of “one-onone” services were terminated as duplicative and not covered by Medicaid. (See generally Lucy Aff. at 2-3.) The termination of those services occurred in July 2009. Id. Like Michelle and Chip, Peter contends that the elimination of these services will effectively result in
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forced and undesired institutionalization. Lastly, the Court would acknowledge that the plaintiffs have commenced
administrative actions concerning these same services, which are at varying stages of resolution. Most notably, it appears that Peter’s appeals have been denied. [See Doc. 70.] The Court will address the effect of these proceedings to the extent relevant, but, as will be discussed, finds them to be largely non-dispositive or otherwise non-preclusive of this Court’s consideration.
DISCUSSION This is a fact intensive and messy case. From its procedural and statutory dimensions to its medical ones, it is substantial. In its review, the Court has attempted to narrow the necessary attention to be applied. Of course, the individual circumstances and incidents of the plaintiffs’ particularized needs tend to additionally layer the inquiry. The whole thing is a delicate matter and, certainly for the plaintiffs, much would seem to hang in the balance. They have an unquestionably powerful story, which has moved the undersigned, in sympathy, if not in the specific formation of this decision’s many contours. Sympathetic considerations, however, are largely outside this Court’s purview. As always, there is a legally correct answer to the dilemma posed, which this recommendation attempts to approximate, in general result if not perfect detail. The care the plaintiffs require is complicated, burdensome, and inexact. In some respects, there is no easy answer to their situations. But certainly, if anyone knows what might be the best, among many less than perfect alternatives, it is the plaintiffs, their families, and their physicians. To credit those
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accounts, earnestly, seems in keeping with the manner in which these cases are to be considered. See Olmstead, 527 U.S. at 610 (Kennedy, J., concurring) (“The opinion of a responsible treating physician in determining the appropriate conditions for treatment ought to be given the greatest of deference.”) The defendants do much good for the disabled persons of our larger community and the Court is aware of the appropriate bases, economic and otherwise, which have motivated the decisions at issue here on behalf of a much larger populace than the individuals prosecuting this case. With that said, and based on the following, as considered in light of the hearing, both in its argument and evidence, and the many briefs of the parties and amici, the Court has concluded that a preliminary injunction should lie.
“A preliminary injunction is an extraordinary and drastic remedy.” Munaf v. Geren, 553 U.S. 674, 128 (2008) (internal quotations omitted). Rule 65 of the Federal Rules of Civil Procedure governs the issuance of Preliminary Injunctions. Pursuant to Rule 65, “a temporary restraining order may be granted . . . only if it clearly appears from specific facts shown . . . that immediate and irreparable injury, loss, or damage will result to the applicant.” In its recent opinion in Winter v. Natural Resources Defense Council, Inc., 129 S.Ct. 365, 374-76 (2008), the United States Supreme Court articulated clearly what must be shown to obtain a preliminary injunction, stating that the plaintiff must establish “[1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Id. at 374. Critically, all four requirements must be satisfied. Id.
8

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Indeed, the Supreme Court in Winter rejected a standard that allowed the plaintiff to demonstrate only a “possibility” of irreparable harm because that standard was “inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Id. at 375-76.
Before the Supreme Court's decision in Winter, the standard articulated in Blackwelder Furniture Co. of Statesville v. Seilig Manufacturing Co., 550 F.2d 189 (4th Cir.1977), governed the grant or denial of preliminary injunctions in the Fourth Circuit. See Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 811-14 (4th Cir.1991); Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353, 359-60 (4th Cir.1991);
In Real Truth About Obama, Inc. v. Federal Election Com'n, 2009 WL 2408735 (4th Cir. August 5, 2009), the Fourth Circuit expressly concluded that the Blackwelder standard stood “in fatal tension with the Supreme Court's 2008 decision in Winter.” Id. at *3. That decision, however, was vacated by the United States Supreme Court for reasons unrelated to the Fourth Circuit’s discussion concerning preliminary injunctions. See Real Truth About Obama, Inc. v. Federal Election, 130 S. Ct. 2371, 2371 (U.S. 2010) (vacating and remanding for further consideration in light of Citizens United v. Federal Election Com'n,130 S.Ct. 876 (U.S. 2010)).
It seems that the vacated Fourth Circuit decision still remains some good indication of how this Circuit would view application of Winter. In Real Truth the Fourth Circuit, stated that a plaintiff must now show that he will “likely succeed on the merits” regardless of whether the balance of hardships weighs in his favor. Id. Moreover, the standard for
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likelihood of success on the merits requires more than simply showing that “grave or serious questions are presented” for litigation. Id. Second, the plaintiff must make a clear showing that he will likely be irreparably harmed absent preliminary relief. Id. That the plaintiff’s harm might simply outweigh the defendant’s is no longer sufficient. Id. Moreover, this showing of irreparable injury is mandatory even if the plaintiff has already demonstrated a strong showing on the probability of success on the merits. Id. Third, the Court is admonished to pay “particular regard” to the “public consequences” of any relief granted. Id. Lastly, there no longer exists any flexible interplay between the factors; all four elements of the test must be satisfied. Id. A failure to establish any of the elements necessary for relief is, therefore, fatal to the request for a temporary restraining order. Winter, 129 S.Ct. at 374.
Applying the standard in Winters, the Court finds that the plaintiffs have established entitlement to a preliminary injunction. Each element will be considered in turn.
Likelihood of Success on the Merits Title II of the Americans with Disabilities Act of 1990 (ADA), prohibits discrimination by public entities against individuals with disabilities. See 42 U.S.C. § 12132. The United States Supreme Court has held that prohibited discrimination under the ADA includes “unnecessary segregation” and “unjustified institutional isolation of personal disabilities.” Olmstead v. L.C., 527 U.S. 581, 600-02 (1999). The Supreme Court’s determination was based, in part, on the Department of Justice regulation, usually referred to as the “integration mandate,” which requires states to administer services “in the most integrated
10

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setting appropriate to the needs of the qualified individuals with disabilities.” 28 C.F.R. § 35.130(d) (amended at 75 F.R. 56164-01, adding a section “h” to § 35.130). The most integrated setting appropriate is defined as “a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible.” Olmstead, 527 U.S. 581, 592 (citing 28 C.F.R. pt. 35, App. A. p. 450, redesignated App. B at 75 F.R. 56164-01). In other words, it is discrimination, on account of a person’s disability, to create obstacles to their ability to live normally in their community.
In Olmstead v. L.C., the United States Supreme Court found a violation of the ADA, ruling in favor of disabled individuals seeking to reside in the community, rather than in a segregated facility. Olmstead, 527 U.S. at 607. The Court emphasized the Preamble of the ADA and the accompanying Congressional finding that “society has tended to isolate and segregate individuals with disabilities” and that the issue continues to be a “serious and pervasive social problem.” Id. at 600. The Court held that the integration mandate of the ADA governed the plaintiffs’ claims. See Olmstead, 527 U.S. at 588.
States are required to provide community-based treatment for persons with mental disabilities when the State’s treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities. Id. at 607. To state a claim under Title II of the ADA based on a violation of the integration mandate, the plaintiff must prove that (1) the State’s treatment professionals have
11

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determined that community-based services are appropriate; (2) the disabled individual does not oppose treatment; and (3) the provision of community-based services can be reasonably accommodated, taking into account the resources available to the state and the needs of other disabled individuals.4 Olmstead, 527 U.S. at 587. Critically, a State’s failure to provide services to a qualified person in a community-based setting as opposed to a nursing home or institution presents a violation of Title II of the ADA. See id.; Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175, 1181-82 (10th Cir. 2003) (imposition of cap on prescription medications placed on participants in community-based program at high risk for premature entry into nursing homes in violation of the ADA).
At this juncture, the plaintiffs have presented evidence demonstrating that their services are being terminated by defendants in violation of the ADA sufficient to justify interim equitable relief. The defendants, focused almost exclusively on the irreperability of the harm alleged, have not really made much argument regarding the plaintiff’s likelihood of success on the merits. The Court will consider each element of the substantive claim, in turn.
In regards to the first, there is no dispute between the parties that the plaintiffs, who have been successfully living in their own homes for numerous years, are deemed eligible for community-based living by the State’s experts. Concerning the second element, the
4 Under the specific paradigm of the ADA, the elements of the claim have been articulated
as follows: (1) is a “qualified individual with a disability;” (2) was either excluded from participation in or denied the benefits of a public entity's services, programs, or activities or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability. See Townsend v. Quasim, 328 F.3d 511, 517 (9th Cir. 2003).
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very existence of this lawsuit, and every representation of the plaintiffs made herein, attests to a complete lack of any objection to community-based living; that is their plain and affirmative desire – to live in their communities.
Lastly, whether the provision of community-based services can be reasonably accommodated, taking into account the resources available to the State and the needs of other disabled individuals, the plaintiffs have put forward evidence that in all material respects it is less costly to provide the community-based, in-home services than institutional ones. (Compare Pl. Ex. 10 with Ex. 11.) To wit, capped respite services for Michelle M. were enjoyed at a cost of $70/day compared with the alternative provision of those same services in an institution at $320/day. (Pl. Exs. 4, 5, 23.) Likewise, the record reveals that Peter B.’s requested one-on-one companion services cost less than $200/week before their elimination under the amendments and that the alternative offer by the state to enroll him in a Workability workshop would cost more than $220/week.5 (Pl. Ex. 1 at 4.) Similarly, the services Chip E. has been receiving during 2010 cost $39,424.25, approximately one-third of the cost of institutional services. [See Doc. 44-10 at 269.] The same institutional services would cost approximately $116,000.00 a year. [See Doc. 44-11.] As to all potential disabled persons affected by the amendments, the plaintiffs have put forward evidence that the number of waiver participants and the likely length of time for such participants in institutional facilities would increase, with a concomitant increase in overall and service-
5 These figures were represented by the plaintiffs to the Court. Their exact source is not clear. Regardless, the record does, in the least, admit to a greater cost for alternative services than the ones requested by Peter B. (Pl. Ex. 1 at 4.)
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specific costs. (Compare Pl. Ex. 10 with Ex. 11.) Olmstead, instructs that the State is exempted from the integration mandate only
where a “fundamental alteration” of the States’ services or programs is required. Olmstead, 527 U.S. at 591-92. Not only do the plaintiff’s not request any alteration, fundamental or otherwise, but they beg for a returned status quo, which is apparently cheaper for the State, and better for the individuals, than the amendments. The Court cannot understand, and the defendants have not explained, how the requested community-based services could be “reasonably accommodated” any better. See Olmstead, 527 U.S. at 587.
The defendants’ only real rejoinder is that, as of this moment, actual institutionalization of the plaintiffs has not occurred and that there exists no credible risk of it, such that any argument concerning cost differential is effectively speculative and premature. The argument seems simultaneously to go to the merits consideration and the irreparability of the harm alleged. The defendant argues it as to the latter. The Court will make some comment in both sections, but principally, here, under the merits analysis.
To echo the briefs of the plaintiffs and the amici, cases involving ADA integration claims have consistently recognized that even the risk of institutionalization is sufficient to establish a violation of Title II and certainly to justify preliminary relief. See Fisher v. Oklahoma Health Care Authority, 335 F.3d 1175, 1184 (10th 2003) (holding that Medicaid participants not currently institutionalized but at “high risk for premature entry into a nursing home” could bring claim for violation of the integration mandate); Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161, (N.D. Cal. 2009); Mental Disability Law Clinic v. Hogan, 2008 WL
14

6:10-cv-00767-TMC Date Filed 11/24/10 Entry Number 71 Page 15 of 25
4104460, at *15 (E.D.N.Y. Aug. 28, 2008) (stating “even the risk of unjustified segregation may be sufficient under Olmstead”). The case law is clear that plaintiffs need not wait to be institutionalized before relief is sought.
Illustratively, the Eastern District of North Carolina recently granted emergency injunctive relief, prohibiting the State from reducing home-based services to persons who had a dual diagnosis of mental retardation and mental illness, just three days after the plaintiffs in that case filed their complaint alleging violation of the ADA; there, the plaintiffs were at risk of having to move from independent apartments to group home or institutional facilities. See Marlo M. v. Cansler, 679 F. Supp. 2d 635 (E.D.N.C. Jan. 17, 2010). While the plaintiffs had not been institutionalized at the time of the filing of the complaint, the district court concluded that a likelihood of success on the merits existed because the plaintiffs had shown that the State’s termination of funding threatened to force the plaintiff’s from their then present living situations into group homes or institutional settings. Id. at 638; see also Ball v. Rogers, 2009 WL 1395423, at *5 (D. Ariz. April 24, 2009) (holding that failure to provide plaintiffs with needed services threatened plaintiffs with institutionalization, prevented them from leaving institutions, and in some instances forced them into institutions in order to receive their necessary care in violation of the ADA and Rehabilitation Act); Hogan, 2008 WL 4104460, at *15 (“[E]ven the risk of unjustified segregation may be sufficient under Olmstead”); M.A.C. v. Betit, 284 F.Supp. 2d 1298, 1309 (D. Utah 2003) (adopting Fisher’s position that a plaintiff need not currently be institutionalized to bring suit).
Specifically, here, the plaintiffs have put forward the following evidence concerning
15

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the risk of institutionalization posed by the elimination of various services. Concerning Peter B., his treating physician has documented Peter’s physical and psychological deterioration since the elimination of the requested services (Reel Aff. ¶ 7-9) and has expressed the opinion that “if the services are not restored, Peter risks loss of the ability to live independently in a community setting and he will likely be placed in an institutional setting because of a decline in his physical and mental condition,” id. ¶ 10. Likewise, Michelle M.’s treating physician, based upon Michelle’s parents inability to assist and here, otherwise, absolute reliance on in-home services to keep her out of a facility, has further indicated that if relevant services were reduced, “Michelle would be likely to have to return to an institution.” (Patterson Aff. ¶¶ 9, 10.) Chip E.’s treating physician has made comparable representations. [See generally Doc. 44-2.] These opinions have been given significant weight. See Olmstead, 527 U.S. at 610; Crabtree v. Goetz, 2008 WL 5330506, at *25 (M.D. Tenn. Dec. 19, 2008).
The defendants contend that the claim of Peter B.’s particular demand is betrayed insofar as he has been without the requested services since July 2009 and, yet, no institutionalization has been required. But, this is not conflicting medical testimony. Rather, it is an unsupported attempt to correlate the two events. The defendants cite administrative findings that the plaintiff has not met his burden to associate his weight loss with the diminution in one-on-one services. (Def. Resp. at 14.) But, besides the irrelevancy of the administrative conclusion regarding evidence which may or may not now be before this Court, Peter has, in fact, submitted evidence, here, that his weight loss is so related; that
16

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it will dangerously affect his diabetes; and that those conditions will force institutionalization. (Reel Aff. ¶ 7-10.) The defendants have offered some evidence of Peter’s fluctuating weight over the years. (Moore Aff. ¶ 4.) But, this does not precisely refute the opinion of Peter’s treating physician that Peter’s condition will continue to deteriorate such that institutionalization is inevitable. (Reel Aff. ¶ 7-9.) That evidence is uncontradicted. And, the Court would credit it.
The defendants further argue that the plaintiffs’ claims are not “ripe” because SCDDSN has agreed to provide services at current levels to Michelle M. and Chip E. while their administrative appeals are pending in the South Carolina Administrative Law Court. It is true that federal courts may issue declaratory judgments only in cases of actual controversy. 28 U.S.C. § 2201. The defendants emphasize that the controversy must be “ripe” for judicial resolution, and that in the context of an administrative case, there must be “an administrative decision [that] has been formalized and its effects felt in a concrete way by the challenging parties.” Charter Federal Sav. Bank v. Office of Thrift, 976 F.2d 203, 208 (4th Cir. 1992). In a similar South Carolina ADA/Medicaid decision, however, the United States Court of Appeals for the Fourth Circuit expressly indicated that the administrative proceedings pending in the State courts were irrelevant to the federal claims. See Doe v. Kidd, 501 F.3d 348, 353 n.1 (4th Cir. 2007). The court stated:
There have been state administrative proceedings in Doe's case since she noted her appeal to this Court. We do not consider the outcome of these proceedings because the outcome has no effect, preclusive or otherwise, on the issues Doe raises before this Court.
17

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Id. Moreover, in this case, the “formalized” administrative decision is the January
amendments themselves, which of their own force exercise legal and binding effect over the plaintiff’s circumstances. See Abbott Laboratories v. Gardner, 387 U.S. 136, 149-50 (1967) (finding regulations themselves to be “final agency action”), overruled on other grounds by Califano v. Sanders, 430 U.S. 99 (1977)). The fact that the plaintiffs have challenged the amendments’ specific application in the form of an administrative appeal, in addition to the judicial case here, does not make the actual regulatory amendments any less “formalized.” The amendments were effective as of January 1, 2010, and there was no act of an administrative court necessary to formalize them any further. And certainly, the defendants cannot expect the plaintiffs, psychologically frail in the first instance, to rely on the vagaries of a promise that services will continue during the pendency of appeal. This lawsuit is their right, as far as the Court can tell.
The plaintiffs have met the burden to establish the three elements of their ADA integration claim. The Court would recommend, therefore, that the plaintiffs have shown a likelihood of success on the merits.6
6 The Court has had some concern over the objection of the defendants that the one-on-one services requested by Peter B. are not properly allowable Medicaid services. Frankly, the defense has not been thoroughly briefed. As far as the Court can tell, the issue in the State administrative proceedings has largely turned on the perceived duplicative nature of those services to other services. [Docs. 19-1, 70-1, -2; Lacy Aff. at 2.] As to that point, the defendants’ showing here is unavailing. The plaintiffs have submitted evidence that the one-on-one services are essential and not redundant. (See Reel Aff. ¶¶ 7-10.) It is true that the administrative law court appears to have agreed that the services were non-waiver services [Doc. 19-1], but the Court does not believe, and the defendants have not argued, that that determination is somehow binding here. Moreover, the adjudication that the services are non-waiver in quality does not appear to be dispositive. As the amici explains, the waiver program is merely an optional tool, which states can use to provide
18

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Irreparable Harm
The evidence at this point is strong that the plaintiffs will suffer regressive
consequences if moved, even temporarily. The plaintiffs have behavioral and special
needs, and benefit from a stable environment and personalized treatment. Information in
the record indicates that they each have conditions or behaviors which make them poor
candidates for group housing.
As a threshold legal matter, numerous federal courts have recognized that the
reduction or elimination of public medical benefits irreparably harms the participants in the
programs being cut. See Beltran v. Myers, 677 F.2d 1317, 1322 (9th Cir.1982) (holding that
possibility that plaintiffs would be denied Medicaid benefits sufficient to establish irreparable
harm); Newton-Nations v. Rogers, 316 F. Supp. 2d 883, 888 (D. Ariz. 2004) (citing Beltran
and finding irreparable harm shown where Medicaid recipients could be denied medical care
as a result of their inability to pay increased co-payment to medical service providers);
Edmonds v. Levine, 417 F. Supp. 2d 1323, 1342 (S.D. Fla. 2006) (finding that state
Medicaid agency's denial of coverage for a off-label use of prescription pain medication
services in the community and to save money on providing institutional care. In other words, use of waivers is simply one way a state may meet the integration mandate of the ADA. “Medicaid can be an important resource to assist states in fulfilling their obligations under ADA. The [Home and Community-Based Services (HCBS)] waiver program in particular is a viable option for states to use to provide integrated community-based long-term care services and supports to qualified Medicaid eligible recipients.” HCBS W aivers – 1915(c), at http://www.cms.hhs.gov/MedicaidStW aivProgDemoPGI/05_HCBSW aivers-Section1915%28c%2 9.asp (last viewed Nov. 22, 2010). In other words, the status of the one-on-one services as nonwaiver does not seem to absolve the defendants of their obligation to provide services to the plaintiff, which would keep in him the community as mandated by Olmstead. Again, the issue has been thinly treated and may be better traced at a later procedural moment in this case. For now, the Court has no reason to conclude either that the one-on-one services are non-waiver or, to the extent that they are, that such a determination matters.
19

6:10-cv-00767-TMC Date Filed 11/24/10 Entry Number 71 Page 20 of 25
would irreparably harm plaintiffs). In other words, institutionalization, as a result of a denial of benefits, constitutes, legally speaking, the kind of harm which equitable relief is suited to enjoin.
More concretely, the plaintiffs have put forward evidence, specifically, of the kind of injury they would face. As discussed, the decline in Peter B.’s mental and physical condition since the termination of his companion services has already been documented. (Pl. Exs. 1, 3, 14.) Soon after Peter B.’s companion services were terminated, his anxiety and depression increased. (See Pl. Exs. 1, 14.) He lost nine pounds between the time that his companion services were terminated and the filing of this lawsuit. Id. This physical deterioration is likely to exacerbate his diabetic condition without the supervision of his specialized diet and exercise provided by his companion service provider. (Reel Aff. ¶ 710.) Peter’s behavior support specialist and psychological services provider, Lennie Mullis, has indicated that Peter’s ability to maintain employment, predicated on community living, is essential to his personal identity and mental health. (Mullis Aff. at 2.) The deterioration in his health, as previously cited, will jeopardize his ability to work, which will lead to both “depression and withdrawal.” Id. at 2-3.
The plaintiffs have also put forward evidence that Michelle M. is likely to suffer the same unexplained physical injuries she experienced when she was previously institutionalized. (Pl. Exs. 4, 5.) There, she mysteriously fell, resulting in the loss of teeth; was clawed on her neck and side to the point of scarring; broke her toe; fell into depression; lost weight; and had difficulty sleeping. (Pl. Ex. 4 ¶¶ 14-19.) The plaintiffs have offered
20

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evidence that she would be at risk of choking from aspiration due to the elimination of speech and language services. (Pl. Ex 5.) In a congregate setting, there is evidence that Michelle M. will be at risk for infections, particularly of her stoma where she is fed through a tube into her stomach. (Pl. Exs. 5, 14.) It has been represented, and unrefuted, that Michelle M. pulls out her feeding tube when she tries to stand up while being fed. (Pl. Ex. 14.) She will likely have to be restrained in a chair if she is placed in an institution. Lastly, because of Michelle M.’s behavioral issues and loud outbursts, she is at great risk in a congregate setting of abuse by other residents, as well as by frustrated and frequently poorly trained staff members. (Pl. Exs. 5, 14.) These are not compensable injuries.
Lastly, the threat of irreparable injury to Chip E. is slightly more difficult to summarize. He is the highest functioning of the three plaintiffs and, maybe, precisely for this reason, the prospect of institutionalization is most terrorizing to him. (Pl. Ex. 9 ¶ 12.) The threat of irreparable injury to Chip exists exactly in the lost opportunity that community living offers. The evidence reveals that Chip is significantly involved with the Clinton High School Football team in substantive ways, all of which would be forfeited upon institutionalization. (Chip Aff. ¶ 6 .) This is precisely the sort of injury incidental to the prejudice of segregation, which the Olmstead mandate contemplates and seeks to redress. See Olmstead, 527 U.S. at 60001 (“[C]onfinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.”) His experience in an institution would come with all of the adjunct humiliations that violation of personal space
21

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and person imposes. “Institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.” Id. Where such an experience can be avoided, without significant alteration of the status quo, the United States Supreme Court has stated, it should be.
The Court does not mean to insult the hard work of the defendants or the individual care providers that accomplish it, but it would be an oversight of this decision not to also emphasize the fairly serious deficiencies of various institutional facilities, revealed in a state agency audit, which include unsanitary conditions; abuse; neglect; and exploitation. [Doc. 44-10 at , 287, 308-09.] Institutions can be places of both great compassion and unspeakable horror. These are not insignificant considerations when measuring the irreparable harm and opportunity cost of a de facto involuntary institutionalization of a person otherwise content and healthy in community.
These various forms of psychological and physical harms posed by institutionalization have been recognized as irreparable and sufficient to justify injunctive relief. See Marlo, 2010 WL 148849, at *2; Crabtree v. Goetz, 2008 WL 5330506, at *30 (M.D. Tenn. Dec., 19, 2008). The Court would agree, on the record here. The cited opinions of the plaintiffs’ treating physicians, which are entitled to deference, see Olmstead, 527 U.S. at 610; Crabtree, 2008 WL 5330506, at *25, create more than a mere “possibility” of irreparable harm, and instead suggest that such harm is “likely,” Winters, 129 S. Ct. at 375-76. And the unfavorable resolution of Peter’s administrative appeal, which the defendant emphasizes
22

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as reason to deny an injunction here [see Doc. 70], is actually additional evidence of the likelihood that the plaintiffs’ rights in necessary services will not be protected and that they will be forced into institutional facilities but for Court action, now.
For all these reasons, the plaintiffs have established a likelihood of irreperable harm. Balance of Harms In contrast to the irreparability of the harm facing the plaintiffs, the harm to the defendants if an injunction is granted is at most slight. With an injunction, the defendants will only have to maintain the same level of funding they have provided to the plaintiffs for years and which, in the instances, of Michelle M. and Chip E., they maintain even now. Further, and as already detailed, the record indicates that maintaining the plaintiffs’ current level of community based services actually presents an overall cost savings per year to alternative placements. To all of this, the defendants have made little rejoinder. They have not attempted to explain how the injunction would peculiarly burden them in any respect, much less to some degree more than the consequences posed to the plaintiffs in the absence of the same. The relief requested is temporary in nature; commensurate with what the defendants have largely been providing the plaintiffs even subsequent to the amendments; and demands no sort of systemic alteration. The request is for the status quo not some new buffet of benefit or other “fundamental alteration.” In all of its consideration, the Court does not mean to suggest that the call has been an obvious one. The defendants’ objections largely sound in reasonableness and legal basis. Both the timeliness of this lawsuit and the urgency of the harm alleged, are matters
23

6:10-cv-00767-TMC Date Filed 11/24/10 Entry Number 71 Page 24 of 25
with which the undersigned has wrestled. Whatever want of quality in the plaintiffs’ claims as to the first two elements of their request for preliminary injunction is aided, here, where the balance of harms fails to raise any sort of alarm in the defendants’ favor. The plaintiffs lead difficult lives, and the Court would tend to take seriously any evidence which threatens the stability and viability of them, particularly where maintaining the current benefit levels so negligibly impacts the defendants. The injunction may never be transformed into a permanent one, but in the interim, it is a small cost to provide temporary relief. The Court does not mean to undercut the ultimate strength of its recommendation. In all respects, the undersigned believes that an ongoing violation of the ADA is present.
Public Interest Finally, the public interest clearly weighs in favor of an injunction in this case. First, the public has an interest in the application of the ADA and its particular legislative mandates and purposes. See e.g. Fisher, 335 F.3d at 1180; Heather K. v. Mallard, 887 F.Supp. 1249, 1263-66 (N.D. Iowa 1995). Second, the information presently before the Court suggests that the plaintiffs request will actually cost taxpayers less money than the alternative care proposed by the defendants, which is obviously a matter of public concern. Again, these interests are not assailed by the defendants. Accordingly, insofar as the plaintiffs have made sufficient showing concerning each element of their request for preliminary injunction, the Court would recommend that it lie.
24

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CONCLUSION

Wherefore, it is RECOMMENDED that the plaintiffs’ Motion for Injunctive Relief [Doc.

12] be GRANTED and the defendants be ordered to maintain and/or return services in the

quality, kind, and volume enjoyed by the plaintiffs prior to January 1, 2010, and, in the case

of Peter B., prior to July 2009.

IT IS SO RECOMMENDED.

November 24, 2010 Greenville, South Carolina

s/Bruce Howe Hendricks United States Magistrate Judge

25

 
 6:10-cv-00767-TMC Date Filed 03/06/12 Entry Number 169 Page 1 of 2

I THE U ITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLI A
GREE VILLE DIVISIO

Peter B., Jimmy “Chip” E. and Michelle M., )

)

Plaintiffs,

)

)

v.

)

)

Marshall C. Sanford, Nikki Randhawa Haley, )

Anthony Keck, Beverly Buscemi, Kelly Floyd, )

Richard Huntress, the South Carolina

)

Department of Health and Human Services and )

the South Carolina Department of Disabilities )

and Special Needs,

)

)

Defendants.

)

)

)

Civil Action Number: 6:10-767-TMC
MOTIO FOR SUMMARY JUDGME T A D/OR TO DISMISS
BASED O MOOT ESS

Defendants hereby move for an order dismissing the claims of Plaintiffs Jimmy “Chip” E. and Michelle M. from this action on the ground of mootness.1 The bases for this motion are set forth in the accompanying memorandum and other attachments. Essentially, those two Plaintiffs have prevailed in a case in the South Carolina Administrative Law Court that has removed the basis for those Plaintiffs’ claims in the present case. The South Carolina Department of Health and Human Services has not appealed that decision. As a result, the issues raised in this case by Chip and Michelle have been rendered moot, and their claims should be dismissed.

1 Defendants Sanford and Haley have also filed an earlier motion to dismiss based on the Eleventh Amendment and the absence of any duty to the Plaintiffs on the part of the present and former Governors. Docket No. 153. That motion applied to all three Plaintiffs, while the present mootness motion applies only to two of them.

6:10-cv-00767-TMC Date Filed 03/06/12 Entry Number 169 Page 2 of 2
Because this is a dispositive motion as to the two Plaintiffs referenced, it is exempt from the consultation requirements of Local Rule 7.02.
Respectfully submitted, DAVIDSON & LINDEMANN, P.A. BY: s/ Kenneth P. Woodington WILLIAM H. DAVIDSON, II, Fed. I.D. No. 425 KENNETH P. WOODINGTON, Fed. I.D. No. 4741 DAVIDSON & LINDEMANN, P.A. 1611 DEVONSHIRE DRIVE, 2ND FLOOR POST OFFICE BOX 8568 COLUMBIA, SOUTH CAROLINA 29202-8568 wdavidson@dml-law.com kwoodington@dml-law.com T: 803-806-8222 F: 803-806-8855 ATTORNEYS for Defendants Columbia, South Carolina March 6, 2012
2

 
 6:10-cv-00767-TMC Date Filed 08/16/12 Entry Number 200 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION

Peter B., Jimmy “Chip” E. and Michelle M., )

)

Plaintiffs,

)

)

v.

)

)

Marshall C. Sanford, Nikki Randhawa Haley, )

Anthony Keck, Beverly Buscemi, Kelly Floyd, )

Richard Huntress, the South Carolina

)

Department of Health and Human Services and )

the South Carolina Department of Disabilities )

and Special Needs,

)

)

Defendants.

)

)

)

Civil Action Number: 6:10-767-TMC
MOTION FOR SUMMARY JUDGMENT
(ALL REMAINING DEFENDANTS)

Defendants Anthony Keck, Beverly Buscemi, Kelly Floyd, Richard Huntress, the South Carolina Departm ent of He alth and H uman Services and the South Carolina Department of Disabilities and Special N eeds, that is, all rem aining defendants,1 hereby move for summary judgment on the following grounds:
1. The claims of Plaintiffs Jimm y “Chip” E. and Michelle M. pertaining to past proposed reductions in service are m oot, for the reasons already set forth in Defendants’ pending motion to dism iss their claims based on m ootness. (Docket No. 169.)

1 Defendants Sanford and Haley were dismissed from this action by Order dated June 13, 2012.

6:10-cv-00767-TMC Date Filed 08/16/12 Entry Number 200 Page 2 of 2

2. There is no existing case or controversy between any of the Plaintiffs and

the Defendants at present, because no reductions in services have occurred, and therefore

there is no present injury in fact.

3. Any claims by any of the Plaintiffs th at services might be reduced in the

future are not ripe for adjudication.

4. Such other claim s as Plaintiffs might have that m ight presently be

justiciable, if any, are unsupported in law and fact.

The bases f or this m otion are s et forth in the accom panying memorandum and

other attachments, as well as all other docum ents and filings properly before the Court in

this case, or of which the Court may take notice.

Because this is a d ispositive motion, it is exempt from the co nsultation

requirements of Local Rule 7.02.

Respectf

ully submitted,

DAVIDSON & LINDEMANN, P.A.

KENNETH

BY: s/ Kenneth P. Woodington WILLIAM H. DAVIDSON, II, Fed. I.D. No. 425
P. WOODINGTON, Fed. I.D. No. 4741

DAVIDSON & LINDEMANN, P.A. 1611 DEVONSHIRE DRIVE, 2ND FLOOR POST OFFICE BOX 8568 COLUMBIA, SOUTH CAROLINA 29202-8568 wdavidson@dml-law.com kwoodington@dml-law.com T: 803-806-8222 F: 803-806-8855

ATTORNEYS for Defendants

Columbia, South Carolina

August 16, 2012

2

 
 6:10-cv-00767-TMC Date Filed 03/30/12 Entry Number 174 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION

Peter B., Karen W., Jimmy “Chip” E., )

and Michelle M.,

)

)

Plaintiffs,

)

)

v.

)

)

Marshall C. Sanford, et al.,

)

)

Defendants.

)

___________________________________ )

Civil Action #: 6:10-cv-767-TMC

PROTECTION AND ADVOCACY FOR PEOPLE WITH DISABILITIES, INC.; SOUTH CAROLINA CHAPTER OF THE
NATIONAL ACADEMY OF ELDER LAW ATTORNEYS; AND SOUTH CAROLINA LEGAL SERVICES, INC. 1
MEMORANDUM OF LAW AS AMICI CURIAE ON ISSUES UNDER THE AMERICANS WITH DISABILITIES ACT, THE REHABILITATION ACT, MEDICAID
PROVISIONS AND FEDERAL AND STATE LAW _______________________________________________________
Protection and Advocacy for People with Disabilities, Inc., the South Carolina Chapter of
the National Academy of Elder Law Attorneys, and South Carolina Legal Services, all of whom
represent individuals with disabilities and their families, respectfully submit this memorandum as
amici curiae on questions of law under the Americans with Disabilities Act (ADA),2 Medicaid
provisions, the South Carolina Code, and federal case law, that will be addressed by this Court
on Defendants’ Motion to Dismiss/Motion for Summary Judgment (Defendants’ Motion).

1 These Amici previously filed an Amici Curiae Memorandum in this case in connection with the Plaintiffs’ Motion for a Preliminary Injunction. Entry 66, filed September 22, 2010. 2 For the Court’s convenience, a glossary of acronyms relevant to this case is provided at the conclusion of this Memorandum of Law.

6:10-cv-00767-TMC Date Filed 03/30/12 Entry Number 174 Page 2 of 22
Protection and Advocacy for People with Disabilities, Inc. (P&A) is a statewide, nonprofit advocacy organization whose purpose is to promote the legal, civil, and human rights of people with disabilities. The State of South Carolina has designated P&A to serve as the federally-mandated protection and advocacy system for South Carolina. S.C. Code § 43-33-310 et seq. As such, P&A is authorized by federal and state law to enforce the civil rights of people with disabilities and is specifically charged with protecting and advocating for the rights of people with developmental disabilities. Developmental Disabilities Assistance and Bill of Rights Act of 2000, 42 U.S.C. §§ 15001 et seq. Under state law, P&A has the power and the duty to advocate for the rights of people with disabilities by "pursuing legal, administrative, and other appropriate remedies." S.C. Code § 43-33-350 (1). P&A assists individuals with disabilities who experience discrimination as a result of a disability, or who are illegally denied needed services by a program or agency. The goals of P&A include increasing public knowledge about the rights of people with disabilities and participating in litigation affecting the legal rights and status of people with disabilities. P&A has participated as amicus curiae in cases before South Carolina appellate courts and in this case. E.g., Singleton v. State, 313 S.C. 75, 437 S.E.2d 53 (1993); Clemson Univ. v. Speth, 344 S.C. 310, 543 S.E.2d 572 (Ct. App. 2001). P&A has a particular interest in the issues raised in Defendants’ Motion due to P&A’s involvement in other litigation relevant to the Defendants’ motion. First, P&A is a plaintiff in a lawsuit that asks for a declaratory order that the South Carolina Department of Disabilities and Special Needs (DDSN), through its Commission, must promulgate regulations governing the operations of the department and related matters. Attachment 1, Complaint in P&A v. DDSN. Second, P&A is representing Medicaid beneficiaries in circumstances similar to those of Chip E. and Michele M. See J.K.E. v. Keck, No. 0:11-cv-02154-TMC (D.S.C. filed August 15, 2011).
2

6:10-cv-00767-TMC Date Filed 03/30/12 Entry Number 174 Page 3 of 22
South Carolina Chapter of the National Academy of Elder Law Attorneys (SCNAELA) is a state chapter of the National Academy of Elder Law Attorneys (NAELA). NAELA is made up of over 4,200 attorneys who practice in the area of elder law and advocate for the needs of elders and persons who have special needs. NAELA promotes the rights of persons who have disabilities, regardless of age, and advocates for fair access to government benefits and essential services that provide persons who have disabilities as much dignity and independence as possible. Members of SCNAELA are South Carolina attorneys who practice in the area of elder law which includes advocacy for the elderly and those with disabilities. The mission of NAELA is to educate and assist attorneys in providing advocacy, guidance and services to enhance the lives of people as they age as well as individuals with special needs. As the organization has evolved, there has been an increasing emphasis on institutional, as well as individual, advocacy for people with disabilities, regardless of age, with particular emphasis on access to government benefits and services that are essential to achieving as much dignity and independence as possible for the person with disabilities.
South Carolina Legal Services (SCLS) is a non-profit statewide law firm providing legal assistance in a wide variety of civil legal matters to eligible low income residents of South Carolina. SCLS is the sole federally funded Legal Services Corporation grantee in South Carolina and receives additional funding from several sources, including the South Carolina Bar Foundation, local United Ways, state court filing fees, and other federal, state and local funding. SCLS’ mission is to protect the rights and represent the interests of low income South Carolinians. Among SCLS’ priorities are representing low income individuals in Medicaid cases involving home and community based services. SCLS is currently handling such cases at administrative and appellate levels.
3

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BACKGROUND Medicaid Home and Community Based Waiver Services and the ADA Integration Mandate: Medicaid is a joint federal and state program. See Doe v. Kidd, 501 F.3d 348, 351 (4th Cir. 2007). Medicaid funds are used both to provide services to individuals in long-term institutions and to enable individuals to live in the community with appropriate supports. See generally 42 U.S.C. § 1396a & 1396n(c). Because some conditions of federal Medicaid law are waived in order to provide certain groups of people with disabilities services in the community rather than in institutions, these programs are referred to as “waivers.” See generally Doe v. Kidd, 501 F.3d 348 (4th Cir. 2007). “Section 1915(c) of the Social Security Act, 42 U.S.C. § 1396n(c), permits states to include in their Medicaid plans non-medical services, such as case management, habilitation services, and respite care. Id. § 1396n(c) (4) (B). States must apply for a waiver and be approved in order to include such services in their Medicaid plans. Id. § 1396n(c) (1). Programs approved under this subsection are waived from many Medicaid strictures, id. § 1396n(c)(3) . . . .” Bryson v. Shumway, 308 F.3d 79, 82 (1st Cir. 2002); see Doe v. Kidd, 501 F.3d at 350. As required by law, these home and community based waiver services are cost neutral compared with institutional care (in actuality they are typically less expensive). See 42 U.S.C. § 1396n(c); Fisher v. Oklahoma Health Care Auth., 335 F.3d, 1175, 1178 (10th Cir. 2003). Using Medicaid funds for waiver services, rather than for institutional care, enables eligible recipients to remain in the least restrictive setting appropriate to their needs as required by the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. (2008); the United States Supreme Court’s decision in Olmstead v. L.C., 527 U.S. 538 (1999); and the “integration
4

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mandate” as set forth in U.S. Department of Justice regulations. The integration mandate requires states to administer services “in the most integrated setting appropriate to the needs of the qualified individuals with disabilities.” 28 C.F.R. § 35.130(d)(amended at 75 F.R. 56164-01, adding a section “h” to § 35.130). The most integrated setting appropriate is defined as “a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible.” Olmstead, 527 U.S. at 592 (1999)(citing 28 C.F.R. pt. 35, App. A. p. 450 (1998), redesignated App. B at 75 F.R. 56164-01). The waivers are a vehicle, supported by federal funding, by which a state can comply with these ADA based requirements.
The ID/RD Waiver: The South Carolina Department of Disabilities and Special Needs (DDSN) provides waiver services to individuals with developmental disabilities and to individuals with head and spinal cord injuries. S.C. Code § 44-21-10 et seq. The vast majority of DDSN’s funding derives from the federal Medicaid program, passed through to DDSN from the state Medicaid agency, the South Carolina Department of Health and Human Services (DHHS). See 42 C.F.R. § 400.203 (“Medicaid agency or agency means the single State agency administering or supervising the administration of a State Medicaid plan.”). Defendant DDSN operates several Medicaid waivers for DHHS.3 The Medicaid waiver relevant to this action is the Intellectual Disabilities and Related Disabilities Waiver (ID/RD Waiver).4 The ID/RD Waiver is for persons
3 States may operate a variety of Medicaid waivers. The ID/RD waiver is a 1915(c) waiver, named after the section of the Medicaid act that created it. Social Security Act, § 1915(c), as amended, 42 U.S.C.A. § 1396n(c). 4 The ID/RD Waiver was formerly known as the MR/RD waiver. The term “mentally retarded” is no longer considered to be accurate or appropriate, and is generally not used by advocates. Until recently, the term has been pervasive in the law and in regulations in South Carolina. On June 7, 2011, Governor Nikki Haley signed Act 47. The act will remove the terms “mental retardation” and “mentally retarded” from state law. The act requires state agencies, boards, committees, and the Code Commissioner (who puts acts into the South Carolina Code of Laws)
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who (1) have an intellectual disability or a related disability, (2) are eligible for Medicaid, and (3) who need home and community based services in order to live in the community. See generally Attachment 2, DDSN ID/RD Waiver Manual, Chapter 1, What is a Waiver.5
Any individual on the waiver will have a set of identified and documented health and safety needs, and a plan of care that addresses how those needs are to be met through services or interventions. See Attachment 2, DDSN ID/RD Waiver Manual, Chapter 1, What is a Waiver6 (“Upon enrollment, approved providers may be authorized to render the needed services that are indicated on the participant’s Support Plan [or plan of care] and included in his/her approved waiver budget”). These needs must be reassessed annually. Defendants’ Motion, Affidavit of Dr. Beverly Buscemi, ¶ 5 (Entry 169-3). An individual’s services may be reduced or increased based upon need at the annual review, at any time there is a change in need, or at any time there is a change in policy. See Attachment 3, Personal Care Services, p. 3 (Informing Service Coordinators that they should ask whether this service needs to continue at the level at which it has been authorized.) Any service provided through the waiver must be provided in accordance with a plan of care. 42 C.F.R. § 441.300(b)(1)(i).
All individuals on the waiver must meet a level of care that is similar to that required to
to substitute the term “intellectual disability” for “mental retardation” and “person with intellectual disability” for “mentally retarded.” The change will take place when rules, regulations, policies, procedures, statues, ordinances, and publications in state agencies are revised. Because of the state’s budget situation, changes will be made on a rolling basis as reprinting is needed. 5 The Waiver Manual is available at http://www.ddsn.sc.gov/providers/medicaidwaiverservices/mrrd/Documents/Default/MR_RD%2 0Waiver%20Manual%20Chapter%201-%20What%20is%20a%20Waiver.pdf (last viewed March 21, 2012). 6 DDSN ID/RD Waiver Manual, Chapter 10, Personal Care Services, available at http://www.ddsn.sc.gov/providers/medicaidwaiverservices/mrrd/Pages/default.aspx (last viewed March 28, 2012).
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receive services in a nursing home. Doe v. Kidd, 501 F.2d at 351.7 Each waiver recipient must be evaluated to determine that “the recipient, but for the provision of waiver services, would otherwise be institutionalized in such a facility.” 42 C.F.R. § 441.302(c)(1)(ii)&(2). In order to be approved for a waiver, the state must make an assurance to CMS that every participant in the waiver has been given the choice of either institutional or home and community-based services. 42 C.F.R. § 441.302(d)(2). Therefore, because waiver services are designed to provide the services which an individual needs to remain in the community, a reduction or termination of services may force an individual to seek services in an institution. In such case, the failure to provide for an individual’s needs in the community states a claim for a violation of the Americans with Disabilities Act, 42 U.S.C. § 12132, as interpreted by Olmstead v. L.C., 527 U.S. 581 (1999).
The Personal Care Cap: In late 2009, DHHS, as the single state agency responsible for the Medicaid program, sought and received the approval of the United States Department of Health and Human Services’ Centers for Medicare and Medicaid Services (CMS) to amend the ID/RD waiver to limit or cap certain services. Memorandum in Opposition to Plaintiffs’ Motion for Preliminary Injunction, Ex. 3, Amended and Supplemental Affidavit of Kathi Lacy, Ph.D., Att. A (Entry 281). The amended waiver places a service use cap or flat cap on the number of hours an individual can receive of particular services: Personal Care I and II, Adult Attendant Care, Adult Companion Care, Nursing, and in-home Respite services. Id. These services provide care to address the needs of individuals who live in their own homes or the home of a family member or
7 The Fourth Circuit describes the level of care as being like that of a nursing home, but technically the level of care that must be met is the same as for an Intermediate Care Facility for Intellectually Disabled or ICF/ID (also known as an ICF/MR).
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friend. This cap affected two of the Plaintiffs, Chip E. and Michelle M. Id. at p. 3-5. The Defendants’ Motion applies only to these two Plaintiffs. The alleged unlawful conduct by the Defendants’ with regard to these Plaintiffs is the reduction in their Medicaid waiver services, namely their Personal Care II (PC II) services. PC II services are designed to meet the care needs of individuals with disabilities who live in the community. See generally Attachment 3, DDSN ID/RD Waiver Manual, Chapter 10, Personal Care Services.
Procedural History and Defendants’ Motion: Plaintiffs’ commenced this action under the ADA and Section 504 of the Rehabilitation Act and other provisions of law on March 24, 2010. On April 29, 2010, Plaintiffs filed a Motion for Preliminary Injunction to maintain their services at the levels in place prior to the implementation of the cap on PC II services. In response to that Motion, the Defendants argued, in part, that the case was not ripe for adjudication because Chip E. and Michelle M. had not actually been exposed to the reduction in their services. Order, p. 2 (Entry 95). On March 7, 2011, this Court granted Plaintiffs’ Motion for Preliminary Injunction, noting that the “requirement that the harm alleged be of sufficient immediacy does not . . . require plaintiffs ‘to await the consummation of threatened injury to obtain preventive relief.’” Id. p. 3 (quoting to Blum v. Yaretsky, 457 U.S. 991, 1000 (1982)). The Plaintiffs’ “ability to seek redress and more stable resolution through the court remains independent of the vagaries of the Defendants.” Id. After making the determination that the case involved a live controversy, this Court found that Plaintiffs were likely to succeed on the merits of their claims because Defendants’ reduction of their PC II hours to 28 hours per week exposed them to a risk of institutionalization in violation of the ADA and the Supreme Court’s decision in Olmstead. See id. 5.
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On March 6, 2012, Defendants filed a Motion to Dismiss/Motion for Summary Judgment with respect to the claims of Chip E. and Michelle M., the two Plaintiffs who were affected by the amended waiver services. Defendants’ Motion (Entry 169). Originally, the Defendants sought to reduce Michelle M. and Chip E.’s services based upon the artificial leval set by Defendants’ PC II service cap. Now the Defendants have asserted that they will provide PC II services to Plaintiffs Chip E. and Michele M. in the amount they received prior to the implementation of the cap, at least until Plaintiffs’ next annual review. Defendants’ Memorandum in Support of Defendants’ Motion, p. 5 (Entry 169-1). Defendants assert that “[w]ith respect to these Plaintiffs’ services in the future, the agencies might still determine in the future that as a matter of fact (as opposed simply to applying an across-the-board rule), Plaintiffs’ individual situations warrant changes or reductions in the services with which they will be provided. However, no review that could lead to such a determination is anticipated for at least six months.” Id. Defendants argue that because they are providing the services requested until the next annual review, the Plaintiffs’ cases are moot—asserting a lack of case or controversy.
Defendants’ motion comes in the wake of their tactical abandonment of their attempt to enforce these cuts in parallel administrative proceedings. When the new waiver was implemented on January 1, 2010, Plaintiffs along with approximately 22 other Medicaid beneficiaries appealed the reduction in their PC II services to DHHS, each beneficiary asking for a fair hearing regarding the reduction in PC II services. Attachment 4, Forkner Interrogatories from Hickey v. Forkner, No. 4:10-2696-TLW-TER. Upon information and belief, each administrative appeal involving PC II reductions was dismissed without a fair hearing. Plaintiffs Chip E. and Michelle M. appealed the dismissal of their case without a fair hearing to the
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Administrative Law Court (ALC). Defendants’ Memorandum, ALC Decision (Entry 169-2). On November 9, 2011, the ALC held that DHHS had to give Plaintiffs an opportunity for a hearing and that DHHS could not apply the 28 hour cap like a rule without first promulgating the cap as a regulation. Id. at 14-15. The ALC remanded the case to DHHS for a hearing on the merits. Id. at 16. On remand, DHHS voluntarily abandoned its arguments by informing the Hearing Officers that it did not intend to reduce the services to the Plaintiffs, at this time, and the Hearing Officers dismissed Plaintiffs’ administrative fair hearings, presumably because the Defendants’ had asserted that the relief requested had been granted. Defendants’ Memorandum, Hearing Officer Decisions (Entry 169-4 at p. 3 and Entry 169-5 at p. 2).
Notwithstanding this newfound willingness to temporarily continue Plaintiff’s services, there has not been any decision by those with authority over whether the cap will be promulgated as a binding regulation to cut Plaintiffs’ benefits. Also, DDSN has not adopted any policies, guidelines, or procedures to award care hours in excess of the 28 hour cap, which DDSN still continues to treat as a mandatory limit in its service documents. The PC II policy is available at http://www.ddsn.sc.gov/providers/medicaidwaiverservices/mrrd/Documents/Default/MR_RD%2 0Waiver%20Manual%20Chapter%2010%20(Personal%20Care%20Services).pdf (last viewed March 28, 2012). Finally, the Defendants have not reversed their position that Plaintiffs do not need more than 28 hours of PC II because of the alleged availability of alternative replacement services.
ARGUMENT Defendants assert that they should win their Motion to Dismiss/Motion for Summary Judgment and prevail in this federal lawsuit merely because they have abandoned certain administrative proceedings and have promised to temporarily abstain from enforcing the cuts at
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issue. Based on this, they argue that the Court lacks jurisdiction over the case because there is no longer a case or controversy between the parties; therefore, according to Defendants, the case is moot. The case is not moot and Defendants’ motion should be rejected on several grounds. In particular, voluntary cessation of illegal conduct does not render a case moot. Therefore, Defendants temporary forbearance and bare averments about future plans are insufficient to protect Plaintiffs from the risks of institutionalization. Indeed this Court in granting Plaintiffs’ preliminary injunction, recognized these very risks as at the heart of Plaintiffs’ claims. In relation to those risks, nothing has changed because Defendants have neither definitively abandoned the 28 hour cap nor set forth any policies or procedures for determining allocation of services in the wake of this voluntary cessation that would comply with the ADA. The Plaintiffs remain at risk of institutionalization in violation of the ADA, and this case can and should continue.
The District Court only has constitutional jurisdiction over cases and controversies. 8 U.S. Const., art. III, § 2, cl. 1; see, e.g. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000). A case is moot if there is no longer vital controversy between the parties, or the issue is no longer “live.” See Murphy v. Hunt, 455 U.S. 478, 481 (1982). However, “voluntary cessation of allegedly illegal conduct does not deprive the tribunal of
8 Some cases describe the doctrine of mootness as one of “justiciability,” and other cases as matter of whether the Court has jurisdiction over a live case or controversy. Compare Fisher v. U.S., 402 F.3d 1167, 1176 (Fed. Cir. 2005)( “Though justiciability has no precise definition or scope, doctrines of standing, mootness, ripeness, and political question are within its ambit.”), with Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1121 (10th Cir. 2010)(“ Under the constitutional-mootness doctrine, a federal court has jurisdiction over only ‘cases’ and ‘controversies.’”). Mootness cases are also divided between concepts of constitutional mootness as well as “prudential mootness.” Rio Grande, 601 F.3d at 1121. Defendants have not articulated their arguments in terms of these distinctions. However, the two cases they cite deal with constitutional or jurisdictional mootness, so the line of cases referred to in this memorandum, attempts to focus on constitutional/jurisdictional mootness.
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power to hear and determine the case, i.e., does not make the case moot.” E.g., U.S. v. W. T. Grant Co., 345 U.S. 629, 633 (1953). A party should not be able “to evade judicial review, or to defeat a judgment, by temporarily altering questionable behavior.” Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1115 (10th Cir. 2010). The party asserting mootness bears the “heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again.” Id. at 1116 (quoting Laidlaw, 528 U.S. at 189). To meet this heavy burden the Defendants must show that “(1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.”9 Id. at 1115 (quoting Los Angeles v. Davis, 440 U.S. 625, 631 (1979)) (emphasis added).
The mere fact that services are maintained pending a future assessment does not render a case moot. In Pashby v. Cansler, a recent and similar case from North Carolina, the Medicaid agency argued that because at least one of the plaintiffs had been successful in the plaintiff’s Medicaid administrative case, the claims made in federal court were moot. No: 5:11-CV-273BO, 2011 WL 6130819, slip op. (E.D.N.C., Dec. 8, 2011)(Attachment 5). As in this case, Pashby involved Medicaid provided personal care services. Some of the plaintiffs “timely appealed the termination of their in-home [personal care services] . . . and are now. . . receiving in-home [personal care services].” Id. at 4. The court noted that “Defendant has only agreed to continue to provide coverage for in-home PCS . . . until the earlier of December 30, 2011, or said Plaintiff’s next assessment.” Id. “Accordingly, because these named Plaintiffs continue to face termination of their in-home PCS, their claims are not moot and Defendant’s argument as such
9 Government officials, like a legislative body, may moot a case when a challenged law is repealed or expires, meeting the “heavy burden.” Rio Grande, 601 F.3d at 1116-1117 and fn 15. The Court should look to see if there is a “reluctant submission [by government actors] and a desire to return to the old ways.” Id. at 117.
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must fail.” Id. (Citing Doe v. Kidd, 501 F.3d 348, 354 (4th Cir. 2007); Peter B. v. Sanford, No. 6:10–CV–00767, 2011 WL 824584, slip op. at *1 (D.S.C. March 7, 2011)); see also L.S. v. Delia, 5:11-cv-354-FL, slip op. at * 12-13 (E.D.N.C. March 29, 2012) (also citing Doe v. Kidd, 501 F.3d at 354; Peter B. v. Sanford, No. 6:10-CV-00767, 2011 WL 824584 at *1 (In this due process case, addressing the issue of standing, the court found that a temporary increase in services did not moot Plaintiffs’ claims: “Additionally, in increasing D.C.’s and M.S.’s services in 2012, defendants make no assertion that the future use of the SIS and SNM resulting in decisions to reduce participants’ services will comply with federal law and due process.”). As recognized by the North Carolina District Court’s citation to this Court’s prior opinion, this Court has already concluded that “[w]hile the Court recognizes that Chip and Michelle’s services have been temporarily stayed at the discretion of Defendants, their ability to seek redress and more stable resolution through the court remains independent of the vagaries of Defendants.” Order, p. 3 (Entry 95). The Defendants’ argument against the Preliminary Injunction has now been recast as a Motion to Dismiss/Motion for Summary Judgment, but nothing has fundamentally changed. Plaintiffs continue to seek a stable resolution independent of the vagaries of the Defendants and, like the Plaintiffs in Pashby, are entitled to this.
To prevail on grounds of mootness, Defendants have the heavy burden of showing that their actions are not voluntary, and that Plaintiffs’ services will not be reduced again in violation of the ADA as interpreted in Olmstead v. L.C., 527 U.S. 581 (1999). See 42 U.S.C. § 12132. Defendants attempt to meet this burden by submitting the order of the Administrative Law Court, the orders of the Hearing Officers, and an affidavit signed by the Director of DDSN, Dr. Beverly Buscemi. None of these documents are sufficient to meet the Defendants’ burden.
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The Administrative Law Court held that Defendant DHHS may reduce Plaintiffs’ PC II services, but only if the Defendants take certain actions first. Either Defendants may reduce PC II services to 28 hours pursuant to a duly promulgated regulation, or the Defendants may reduce PC II services based upon the needs of the individual, providing a hearing is available on whether that decision was made correctly. Defendants’ Memorandum, Administrative Law Court Order, (Entry 169-2). On remand the orders of the Hearing Officers did not resolve any of these issues. The Hearing Officers simply dismissed the current administrative appeals because they were informed that the Defendant had decided to reinstate the hours. Defendants’ Memorandum, Hearing Officer Orders, (Entries 169-4 & 5).
Defendants May Still Promulgate the 28 Hour Cap as a Regulation and Reduce Plaintiffs’ Services Pursuant to Regulation:10
Defendant’s Motion can only succeed if they have met the heavy burden of showing that there is no reasonable expectation that they will promulgate a regulation to implement the cap, which would mean the alleged illegal activity (namely the reduction in services in violation of the ADA) could recur. See Laidlaw, 528 U.S. at 189. To meet this burden, the Defendants state that they “do not presently seek to promulgate the challenged policy [the 28 hour cap on PC II services] as a regulation.” Defendants’ Memorandum, p. 7 (Entry 169-1). The evidence supporting this statement, the affidavit of Dr. Beverly Buscemi, the Director of DDSN, does not satisfy this burden. First, the statement professes nothing about the future. The complaint asks for an injunction, or prospective relief. An affidavit regarding the Defendants’ “present plans”
10 For purposes of clarification, whether or not the 28 hour cap in PC II services is imposed upon the Plaintiffs based upon a policy, a regulation, or even a state statute, is irrelevant to whether the ADA is violated under the Olmstead case. Whether the 28 hour cap is implemented pursuant to a regulation only relates to the state law decision made by the Administrative Law Court, which held that a cap on services could not be imposed unless it was promulgated as a regulation.
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does not satisfy the “heavy burden” showing the case is moot. See generally, Virginia v. Califano, 631 F.2d 324 (4th Cir.1980). Second, the affidavit is signed by the Director of DDSN. The South Carolina Code does not grant the Director of DDSN the authority to promulgate regulations. She serves at the pleasure of the South Carolina Commission on Disabilities and Special Needs. S.C.Code Ann. § 44-20-220 (Supp. 2011). “The commission shall determine the policy and promulgate regulations governing the operation of the department.” Id. Dr. Buscemi has mistakenly indicated to the Court that she has authority or control over whether such a regulation will be promulgated. The assertion by Dr. Buscemi that promulgating a regulation implementing the cap is not “presently” in the plan is legally insufficient to render the federal law suit moot.
Defendants Have Not Met the Heavy Burden of Showing That They Will Maintain Plaintiffs’ Services:
Defendants assert that they will not reduce Plaintiffs’ services “for at least six months,” and that any future reduction will be based upon need. Defendants’ Motion, Affidavit of Dr. Beverly Buscemi, ¶ 5 (Entry 169-3). Defendants have not asserted how Plaintiffs’ needs will be determined in the future, namely whether they have a rationally designed tool to assess need or whether they will implement an arbitrary and impermissible definition of “need.” Under the voluntary cessation doctrine, the question before this Court is whether Defendants have met the “heavy burden” of establishing that the reduction in the Plaintiffs’ services, which this Court has already determined would likely violate the ADA, will not recur. While Defendants have asserted that the reduction will not happen through an unpromulgated flat cap on PC II services, they have not suggested that a reduction will not recur. Significantly, Defendants have not bound themselves to return to the pre-cap rules and procedures that led to the agency’s prior
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determination that Plaintiffs required their current and long-standing levels of service. Nor have they announced any new procedures that would pass muster under the ADA and Olmstead. Defendants’ theory of this case consistently has been that these Plaintiffs only need 28 hours of PC II services because other services are available. Plaintiffs disagree with that assessment (and in connection with the Preliminary Injunction have already established a likelihood of success on the merits of their position). In fact, Defendants have stated that no one needs more than 28 hours of PC II services:
 “[T]he Defendants, with the approval of CMS, have concluded that no one needs more than 28 hours weekly of PC II services.” Attachment 6, Buscemi Interrogatories from Hickey v. Forkner, No. 4:10-2696-TLW-TER.
 “28 hours of PC II services, with corresponding adjustments in respite care and other services, was determined to be a level of authorization by which an individual could be maintained in his or her home in reasonable comfort and safety. It is therefore probably most accurate to describe PC II services in excess of 28 hours per week as services that are desired by the recipients, but not indispensable.” Attachment 4, Forkner Interrogatories, Response 3, from Hickey v. Forkner, No. 4:10-2696-TWL-TER.
 In this case, the Defendants have repeatedly asserted that other services are available to meet the needs of the Plaintiffs and are an adequate substitute for the lost PC II services. Defendants’ Objection to Report and Recommendation, p. 8-10 (Entry 74).
Defendants’ Motion does not retract the above claims. The Plaintiffs and Defendants have fundamental differences over whether more than 28 hours of PC II services are needed and over whether other services are available or appropriate to replace those hours. Defendants’ statement that Plaintiffs will only be assessed for PC II services based upon “need” does not indicate that
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Defendants have reversed their position regarding what is needed and what is not. Nothing in the documents filed with Defendants’ Motion changes the fundamental controversy between the parties—how Defendants will provide for Plaintiffs’ needs in the community. Thus, there remains a “reasonable expectation” that the violation will recur. See e.g. Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1115 (10th Cir. 2010).
Defendants Have Not Changed Their Policy Implementing the 28 Hour Cap in PC II Services:
In some jurisdictions, governmental officials have been able to meet the “heavy burden” established in Laidlaw, by discontinuing the challenged practice. Rio Grande, 601 F.3d at 1116 (“even when a legislative body has the power to re-enact an ordinance or statute, ordinarily an amendment or repeal of it moots a case challenging the ordinance or statute.”) “Likewise, the ‘[w]ithdrawal or alteration of administrative policies can moot an attack on those policies.’” Id. at 1117 (quoting Bahnmiller v. Derwinski, 923 F.2d 1085, 1089 (4th Cir.1991)). In Bahnmiller, the complained of policy had been unequivocally reversed. The Fourth Circuit distinguishes between cases where the government makes an unequivocal reversal of policy with no intention to revive it and where the government concedes for the purposes of litigation in one particular case. Compare Bahnmiller v. Derwinski, 923 F.2d 1085 (4th Cir.1991) with Virginia v. Califano, 631 F.2d 324 (4th Cir.1980). In Califano, the Commonwealth of Virginia argued that the federal Department of Health, Education, and Welfare (HEW) had to provide a formal hearing when it denied approval of an amendment to the state plan, which implemented the Aid to Families with Dependent Children program. Califano, 631 F.2d at 325. While the case was pending in the district court, HEW provided the hearing requested in the complaint. HEW then argued that the case was moot, without ever conceding that Virginia was entitled to the hearing.
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Id. at 326-27. HEW lost on the mootness issue because “[v]oluntary cessation of established illegal conduct makes a case moot only if it can be said with assurance that there is no reasonable expectation that the wrong will be repeated because otherwise the defendant is free to return to his old ways. This is sufficient to prevent mootness because of the public interest in having the legality of the practices settled.” Id. at 326.
In this case, Defendants have not changed their policy, nor have they claimed any intention to do so. Replacing a service like PC II with a potentially unavailable and inappropriate service, like respite care, is a matter with which the public has an interest “in having the legality of the practices settled.” Id. Defendants’ website continues to post the 28 hours cap on services. Attachment 3, DDSN ID/RD Waiver Manual, Chapter 10, Personal Care Services (showing that only 28 hours of PC II services may be authorized). Defendants have only conceded that they will not reduce “these Plaintiffs’” services prior to the next annual review. They have stated that if the services are reduced, the reduction will be based upon “need.” However, the Defendants clearly have not reversed their position that “no one needs more than 28 hours of PC II services weekly” or their position that other allegedly equivalent services are available to replace those PC II services. This matter continues to present a live controversy over whether or not the Defendants will make a determination that Plaintiffs’ needs are met within the 28 hour limit. The controversy remains, and the case is not moot.
The Availability of Administrative Remedies Does Not Make This Case Moot: Finally, ignoring the repeatedly demonstrated deficiencies of their administrative process and the manifest right of individuals to pursue their ADA claims in federal court, Defendants assert that “[b]ecause of the existence of [Medicaid fair hearings which are] federally-mandated remedies in state tribunals . . . the continuation of this action is no longer an appropriate means
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for challenging any individualized, fact-based determination that might be made with respect to the service hours required by these Plaintiffs.” Defendants’ Memorandum, p. 6 (Entry 169-1). Defendants’ position is without merit. First, the Defendants position that “no one needs more than 28 hours of PCII services weekly” is neither “individualized” nor “fact based.” Second, as the Fourth Circuit has stressed, the existence of DHHS’ administrative hearing procedures has no effect on Plaintiffs individual rights to proceed in federal court. Doe v. Kidd, 501 F.3d 348, 353 n.1 (4th Cir. 2007). Third, the administrative remedies are not adequate to address the issues raised in the complaint, namely whether the Defendants’ alleged illegal action, the reduction of services and the threat of future reductions in services, violates the ADA. Even though Medicaid beneficiaries may have access to a hearing, any relief found there, assuming they are successful in the hearing, is only temporary at best.
In this case, DHHS wishes to identify the administrative process as a panacea for individuals who make allegations that the reduction in their services is in violation of the ADA. For those who are successful in an administrative hearing on any grounds, DHHS wishes to quash the availability of a meaningful administrative remedy before the Hearing Officers. According to the attached affidavit of the Director of DHHS, the Medicaid Hearing Officer does not have the authority to order prospective relief or a change in policy (like a change in the 28 hour cap). Attachment 7, Affidavit of Anthony E. Keck, ¶ 7.11 According to the affidavit, the only authority a fair hearing officer has is to reverse or affirm a DHHS’ determination. Id. at ¶ 8. If the Director of DHHS does not agree with the decision of the hearing officer, then he asserts
11 This affidavit was submitted in an appeal before the Administrative Law Court. In that case, the Medicaid beneficiary had succeeded in the case before the DHHS Hearing Officer. DHHS then brought an appeal to the Administrative Law Court from the decision of the DHHS Hearing Officer.
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he can authorize the Office of General Counsel to appeal the hearing officer’s decision.12 See id. at ¶ 10. DHHS cannot assert drastic limits on the Hearing Officer’s authority in one context and assert that the Hearing Officers are the “appropriate means” for challenging agency action in the ADA context. Unlike the DHHS fair hearing officer, this Court does have the authority to grant prospective relief and to find that Defendants’ policy violates the ADA. The alleged availability of administrative relief does not make this case moot.
CONCLUSION “[U]nder Title II of the ADA, States are required to provide community-based treatment for persons with mental disabilities when [1] the State's treatment professionals determine that such placement is appropriate, [2] the affected persons do not oppose such treatment, and [3] the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.” Olmstead, 527 U.S. at 607. To help states meet the requirement imposed by Title II, the Medicaid waiver programs were established to provide care in the community for individuals who want to be in the community and whose needs can be met in the community. See generally Radaszewski v. Maram, 383 F.3d 599, 601-02 (7th Cir. 2004). Each amicus in this case represents individuals who receive services through DHHS and DDSN. These amici organizations have seen the negative effect that the reduction in services continues to have on individuals with disabilities and their families. The policy implementing the cap on PC II services has not changed and continues to place individuals like these Plaintiffs at risk of institutionalization, in violation of the ADA. For reasons stated herein, Amici
12 While amici do not necessarily agree with DHHS’s view of the authority of the hearing officer, they accept the premise for the purposes of this brief and for purposes of distinguishing the relief available in the administrative process and the relief available in federal court.
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respectfully request consideration of this Memorandum of Law in rendering any decisions on the

Defendants’ Motion.

Respectfully submitted,

PROTECTION AND ADVOCACY FOR PEOPLE WITH DISABILITIES, INC.

BY: s/Anna Maria Darwin ANNA MARIA DARWIN (Fed. Id. #5532) 545 N. Pleasantburg Drive, Suite 106 Greenville, SC 29607 (864) 235-0273 darwin@pandasc.org

s/Sarah St. Onge

.

SARAH GARLAND ST. ONGE (Fed. Id # 9875)

3710 Landmark Drive, Suite 208

Columbia, SC 29204

(803) 782-0639

stonge@pandasc.org

SOUTH CAROLINA CHAPTER OF THE NATIONAL ACADEMY OF ELDER LAW ATTORNEYS

BY: s/Philip Corson

.

PHILIP CORSON (Fed. Id. # 9754)

Haselden, Owen, Boloyan & Corson, LLC

4609 Charlotte Hwy., Ste. 1

Lake Wylie, SC 29710

(803) 831-2738

PCorson@hoblaw.com

SOUTH CAROLINA LEGAL SERVICES

BY: s/Daniel R. Unumb

.

DANIEL R. UNUMB (Fed. Id. # 9671)

Director of Litigation

2109 Bull Street

P O Box 1445

Columbia, SC 29201

(803) 744-4181

danielunumb@sclegal.org

Columbia, South Carolina March 30, 2010

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GLOSSARY OF ACRONYMS  ADA – Americans with Disabilities Act  ALC – Administrative Law Court  CMS –U.S. Department of Health and Human Services, Centers for Medicare and
Medicaid Services  DDSN – South Carolina Department of Disabilities and Special Needs  DHHS – South Carolina Department of Health and Human Services  ID/RD – Intellectual Disabilities/Related Disabilities (aka MR/RD)  P&A – Protection and Advocacy for People with Disabilities, Inc.  PC II – Personal Care II  SCLS – South Carolina Legal Services, Inc.  SCNAELA – South Carolina Chapter of the National Academy of Elder Law Attorneys
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 6:10-cv-00767-TMC Date Filed 08/21/12 Entry Number 207 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

GREENVILLE DIVISION ______________________________________________________________________________

Peter B., Jimmy “Chip” E., and Michelle M.,
Plaintiffs,

Case No: 6-10-CV-767-TMC

v. AMENDED MOTION FOR SUMMARY JUDGMENT
Marshall C. Sanford, Nikki Randhawa Haley, Anthony Keck, Beverly Buscemi, Kelly Floyd, Richard Huntress, the South Carolina Department of Health and Human Services and the South Carolina Dept. of Disabilities and Special Needs,
Defendants. ______________________________________________________________________________

Plaintiffs file this amended motion for Summary Judgment, based on the grounds included in the attached memorandum of law. No consultation is required.

The issues are as follows:

Issue 1.

Have Defendants violated Plaintiffs’ Due Process and statutory rights to a fair hearing in violation of 42 U.S.C. §1983 by failing to provide the Plaintiffs with a fair hearing and a final decision within 90 days of the request for the fair hearing, and is this violation subject to repetition, yet it evades review?

Issue 2. Issue 3.

Defendants have violated Plaintiffs’ rights under 42 U.S.C. §1983 and the Supremacy Clause of the United States Constitution by failing to provide services in the amount, duration and scope necessary to reasonably achieve the purpose of the MR/RD Medicaid waiver program and by failing to include reasonable standards for determining eligibility for and the extent of medical assistance.
Are Defendants prohibited by the South Carolina Administrative Procedures Act and collateral estoppel from enforcing reductions in MR/RD Medicaid services that are not promulgated as regulation?

6:10-cv-00767-TMC Date Filed 08/21/12 Entry Number 207 Page 2 of 2

Issue 4.

Are Defendants prohibited from reducing Plaintiffs services, and from denying future services, based on unpromulgated binding norms because their policies violate the Americans with Disabilities Act and the Rehabilitation Act?
Respectfully submitted,
s/ Patricia L. Harrison Patricia L. Harrison 611 Holly Street Columbia, SC 29205 803-256-2017 Fed ID 6963 Email: plh.cola@att.net
Kenneth C. Anthony, Jr., Fed. ID 1132 Anthony Law Firm PO Box 3565 Spartanburg, SC 29304 864-582-2355 Email: kanthony@anthonylaw.com
Attorneys for the Plaintiffs

August 23, 2012

 
 6:10-cv-00767-TMC Date Filed 12/06/10 Entry Number 73 Page 1 of 14

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA GREENVILLE DIVISION

Peter B., Jimmy “Chip” E. and Michelle M.,
Plaintiffs,
vs.
Marshall C. Sanford, Emma Forkner, Beverly Buscemi, Kelly Floyd, The South Carolina Department of Health and Human Services and The South Carolina Department of Disabilities and Special Needs,
Defendants. __________________________________

) Civil Action No. 6:10-767-RBH-BHH

)

)

)

)

)

) REPORT AND RECOMMENDATION

)

OF MAGISTRATE JUDGE

)

)

)

)

)

)

)

This matter is before the Court on the defendant Marshall Sanford’s motion to

dismiss [Doc.11] pursuant to Federal Rules of Civil Procedure 12(b)(1) & (6). In their

Amended Complaint, the plaintiffs would allege violations of Title II of the Americans with

Disabilities Act of 1990 (ADA), 42 U.S.C. § 12132; Section 504 of the Rehabilitation Act of

1973 (Section 54); the Medicaid Act, 42 U.S.C. § 1396; and 42 U.S.C. §§ 1983, 1985, 1988.

The original Complaint included only claims pursuant to the ADA, the Rehabilitation Act,

and Section 1983. [Doc. 1] The Defendant Sanford has been sued in both his individual and

official capacities only for prospective relief.” [51-1, Amend. Compl.] The defendant is the

Governor of the State of South Carolina.

In addition to the full briefing of the parties, a hearing on the motion was held before

the Court, on September 28, 2010. As with the motion for injunctive relief, based upon the

6:10-cv-00767-TMC Date Filed 12/06/10 Entry Number 73 Page 2 of 14
parties’ respective representations at both hearing and on motion, the Court has allowed this case some opportunity to be resolved through changed circumstances at the state level. [Doc. 28.] Accordingly, there has been some delay. It has become apparent over time that a resolution is now in order.
Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(A), and Local Rule 73.02(B)(2)(g), D.S.C., all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration.
BACKGROUND The plaintiffs are three individuals who have varying degrees of severe mental retardation and/or related disabilities. Peter B. has mental retardation, hydrocephalus, diabetes and coronary heart disease. Chip E. has normal intelligence and severe cerebral palsy and a speech disorder. Michelle M. has autism, profound mental retardation, cerebral palsy, a bipolar disorder and is unable to speak. The defendant South Carolina Department of Disabilities and Special Needs (“DDSN”) provides services to individuals, like the plaintiffs, with developmental disabilities such as mental retardation and autism, and to some individuals with head and spinal cord injuries. See S.C. Code § 44-21-10 et seq. The vast majority of DDSN’s funding derives from the federal Medicaid program, passed through to DDSN from the state Medicaid agency, defendant South Carolina Department of Health and Human Services (“DHHS”). Medicaid funds are used by both of these defendants to provide services to individuals in long-term institutions and to enable individuals to live in the community with appropriate
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supports. See generally 42 U.S.C. §§ 1396a & 1396n(c). The plaintiffs contend that, through their administration of the Medicaid program, the
defendants, including Governor Sanford, in various ways have reduced the plaintiffs’ access to certain in-home and community based personal health and wellness services. The plaintiffs contend that such diminution in services will force them out of their current homes and into institutional settings, in violation of the mandate, expressed in Olmstead v. v. L.C. ex rel. Zimring, 527 U.S. 538 (1999), that such individuals are discriminated against when their ability to be integrated into their communities is undermined.
LEGAL STANDARD Under Federal Rule of Civil Procedure 12(b)(6), a motion to dismiss for failure to state a claim should not be granted unless it appears certain that the plaintiff can prove no set of facts which would support its claim and would entitle it to relief. In considering a motion to dismiss, the court should accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff. Mylan Laboratories, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993) (citations omitted).
DISCUSSION I. Sovereign Immunity and Ex parte Young
The defendant first argues that he should be dismissed from the case because he has no special relation to the administration of Medicaid by DHHS or DDSN. Said differently, the defendant contends that whatever reduction in services has occurred, he is not sufficiently accountable for the decision to continue as a defendant in this case. This
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argument starts with some discussion of sovereign immunity. The Eleventh Amendment prohibits a citizen from suing a state for monetary damages in federal court without its consent. Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 72-73 (2000); Fla. Prepaid Postsecondary Educ. Expense Bd. v. College Savs. Bank, 527 U.S. 627, 634-35 (1999). However, “Congress may abrogate the States’ Eleventh Amendment immunity when it both unequivocally intends to do so and ‘act[s] pursuant to a valid grant of constitutional authority,’” namely its § 5 Fourteenth Amendment powers. Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 363 (2001). This and other circuit courts of appeal have agreed that the ADA and the Rehabilitation Act both constitute an abrogation and/or a waiver1 of sovereign immunity. See Constantine v. Rectors and Visitors of George Mason University, 411 F.3d 474 (4th Cir. 2005); Miranda B. v. Kitzhaber, 328 F.3d 1181 (9th Cir. 2003).
Notwithstanding, it appears to the Court, that the issue of whether Defendant Sanford himself, as a state official, can be sued, in that capacity, turns on an application of the United States Supreme Court’s seminal decision, in Ex parte Young, 209 U.S. 123 (1908). See Miranda, 328 F.3d at 1187; Carten v. Kent State Univ., 282 F.3d 391, 396 (6th Cir.2002). Under Ex parte Young, it is well-settled, that suit may be brought for injunctive or declaratory relief against state officials, like Defendant Sanford, for violations of federal law. See Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 329-330 (4th Cir. 2001).
1 Under the Rehabilitation Act, a state waives its immunity from suit by accepting federal funds. Miranda, 328 F.3d at 1186.
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In spite of the abrogating effect of the ADA and the Rehabilitation Act, an appeal to Ex parte Young is necessary because Title II prohibits only “public entities” from discriminating against individuals because of a disability, 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act prohibits only “a program or activity receiving Federal financial assistance” from denying benefits to individuals because of a disability, 29 U.S.C. § 794(a). Neither the ADA’s definition of “public entity,” 42 U.S.C. § 12131(1), nor the Rehabilitation Act’s definition of “program or activity,” 29 U.S.C. § 794(b), includes individuals within their scope. Accordingly, courts have concluded: “[A]n official who violates Title II of the ADA does not represent ‘the state’ for purposes of the Eleventh Amendment, yet he or she nevertheless may be held responsible in an official capacity for violating Title II, which by its terms applies only to ‘public entit[ies].’”2 Carten, 282 F.3d at 396.
Under Ex parte Young, in “making an officer of a state a party defendant in a suit to enjoin the enforcement of an act alleged to be unconstitutional, it is plain that such officer must have some connection with the enforcement of the act.” Ex parte Young, 209 U.S. at 157. Specifically, Ex parte Young requires a “special relation” between the state official sued and the challenged statute, and “[g]eneral authority to enforce the laws of the state is not sufficient to make government officials the proper parties to litigation challenging the law.”3 Waste Mgmt. Holdings, 252 F.3d at 331 (quoting Children’s Healthcare is a Legal
2 The Court would admit that the interplay between the abrogation of the state’s immunity by the ADA and the concomitant resort to Ex parte Young, typically reserved to circumvent sovereign immunity, has been less than clear under the pertinent decisions.
3 In order to survive a motion to dismiss on an Ex parte Young claim, it is typically sufficient that the plaintiff has alleged facts that, if proven, would violate federal law and that the requested
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Duty, Inc. v. Deters, 92 F.3d 1412, 1416 (6th Cir. 1996)). The defendant rightly emphasizes that the general enforcement responsibilities of a
governor do not qualify as a “special relation” sufficient to permit suit. See, e.g., Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d at 331 (dismissing claim against governor because although he was “under a general duty to enforce the laws of Virginia by virtue of his position as the top official of the state’s executive branch, he lacked a specific duty to enforce the challenged statutes); Young v. Hawaii, 548 F.Supp.2d 1151, 1164 (D. Haw. 2008) (holding that allegations of “general oversight of State laws are insufficient to establish the required nexus between . . . the Governor” and the enforcement of the challenged statute); Harris v. Bush, 106 F.Supp.2d 1272 (N.D. Fla. 2000) (ruling that governor’s general constitutional authority to enforce the laws is insufficient to make him a proper party to a lawsuit challenging constitutionality of a law).
Nearly all of the plaintiffs’ allegations concerning Defendant Sanford fall into this category. The plaintiffs’ Amended Complaint includes the following averments relevant to Defendant Sanford. It alleges that an Attorney General’s Opinion made the Governor aware of his appointment and removal authority over local DSN boards. (Am. Compl. ¶ 15.) Additionally, the plaintiffs claim that since 2003 Governor Sanford and his Chiefs of Staff
relief is prospective. Verizon Md., Inc. v. Pub. Serv. Comm'n of Md., 535 U.S. 635, 645-46 (2002) (“[T]he inquiry into whether suit lies under Ex parte Young does not include an analysis of the merits of the claim.” (citing Coeur d'Alene, 521 U.S. at 281, 117 S.Ct. 2028)). The Court, however, may look to the “special relation” requirement to dismiss a claim where “the relationship between the state official sought to be enjoined and the enforcement of the state statute is significantly
attenuated.” South Carolina Wildlife Federation v. Limehouse, 549 F.3d 324, 333 (4th Cir. 2008).
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have been aware of various problems at DDSN and that he has failed to correct these problems. (Am. Compl. ¶¶ 16-20.) The plaintiffs also allege that Governor Sanford has failed to appoint members to advisory boards to DDSN and that the Governor’s Chief of Staff participated in an August 2009 meeting regarding anticipated service reductions by DDSN. (Am. Compl. ¶¶ 19, 70-72.) As the above-cited cases indicate, these are precisely the types of oversight and general enforcement duties which do not qualify as creating any special relation. Other courts have agreed that appointment power over agency boards is insufficient, even coupled with general enforcement duties and veto/approval powers. See, e.g., D.G. ex rel. Stricklin v. Henry, 591 F. Supp. 2d 1186, 1189 (N.D. Okla. 2008) (observing that “the Governor has the power to appoint members of the OCHS and to name its chairman. However, the Governor is in no sense responsible for actually administering the foster care system.”); Kelly v. Burks, 414 F.Supp.2d 681, 686 (E.D. Ky., February 07, 2006) (“The power to make appointments to the entity that acted unconstitutionally is insufficient to demonstrate that a state official falls within the exception recognized in Ex parte Young.”); LensCrafters, Inc. v. Sundquist, 184 F. Supp. 2d 753, 757-59 (M.D. Tenn.2002) (dismissing claim against Governor of Tennessee when the power to make appointments to board is the only nexus between Governor and the challenged action by the board); Sweat v. Hull, 200 F. Supp. 2d 1162, 1175-76 (D. Ariz. 2001) (dismissing claim against Governor who signed allegedly unconstitutional bill into law and appointed the cabinet official responsible for enforcing that law).
“‘The mere fact that a governor is under a general duty to enforce state laws does
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not make him a proper defendant in every action attacking the constitutionality of a state statute.’” Waste Management, 252 F.3d at 331 (quoting Shell Oil Co. v. Noel, 608 F.2d 208, 211 (1st Cir.1979)). It is an issue of “proximity to and responsibility for” the action. South Carolina Wildlife Federation v. Limehouse, 549 F.3d 324, (4th Cir. 2008) (involving the Director of the SCDOT who had specific directives under state and federal law regarding implementation of the National Environmental Policy Act). The Fourth Circuit, in Lytle v. Griffith, 240 F.3d 404, 410 (4th Cir. 2001), outlined a two-step query: (1) What is the Governor's connection, if any, to the enforcement of the challenged anti-loitering statute? and (2) If there is a connection, is it sufficient to implicate the exception to sovereign immunity found in Ex parte Young? Id. The relation of Governor Sanford, in this case, is neither directed in any particular way by statute, as far as the Court has been shown, nor has the Amended Complaint characterized his limited duties of appointment and enforcement as very proximate to the decision of Defendant DHHS to amend the waiver, thereby capping the services, about which the plaintiffs now complain. The plaintiffs concede, indeed argue, that Defendant DHHS made the decision concerning reductions, not the Governor. (Pl. Resp. Mot. Dismiss at 11.) DHHS is the single entity responsible for administering Medicaid in this state. See S.C. Code Ann. § 44-6-30(1). Accordingly, DHHS alone can administer and supervise the State’s Medicaid plan, and the Governor has no discretion over the plan’s administration. See 42 CFR § 431.10(e). As discussed, the Governor’s appointment duties related to that agency and its advisory boards do not make him specially accountable. Other courts have agreed, under nearly identical circumstances.
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See Gray Panthers of San Francisco v. Schwarzenegger, 2009 WL 2880486, at *2-3 (N.D. Cal. Sept. 1, 2009) (dismissing Governor of California who had no direct enforcement over Medicaid cut because state agency was solely responsible for administration of Medicaid).
The plaintiffs’ proposed Amended Complaint, however, also alleged that federal Medicaid funds provided by the American Recovery and Reinstatement Act of 2009 (ARRA) have been unlawfully diverted to a “rainy day fund.” [Doc. 51-1at 2 ¶ 6, at 58, ¶ 41.) The Court initially considered those allegations as potentially of the sort which might begin to permit a view of the Governor’s relation to the events as specially proximate. But, the undersigned, by way of separate Order, has concluded that the plaintiff does not have leave to add a claim under the ARRA. [Doc. 72.] Accordingly, the Court need not reach the effects of such allegations concerning diversion of funds to a rainy day account.
The defendant is also not subject to suit in his individual capacity. As discussed, Title II prohibits only “public entities” from discriminating against individuals because of a disability, 42 U.S.C. § 12132, and § 504 prohibits only “a program or activity receiving Federal financial assistance” from denying benefits to individuals because of a disability, 29 U.S.C. § 794(a). Accordingly, various courts have concluded that such restrictions bar any suit against state officials in their individual capacity. See Brewer v. Wisconsin Bd. of Bar Examiners, 270 Fed. Appx. 418, 419 (7th Cir. 2008) (holding that bar examiners could not be sued in individual capacities because the two statutes only authorize claims against public entitities); Baird v. Rose, 192 F.3d 462, 471-72 (4th Cir. 1999); Swaim v. Westchester Academy, Inc., 170 F. Supp. 2d 580, 583 (M.D.N.C. 2001) (dismissing Rehabilitation Act
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claim against defendant because individuals could not be personally liable) (citing Hiler v. Brown, 177 F.3d 542, 545-47 (6th Cir. 1999)); Hannah v. United States Air Force, 2010 WL 128291 (D.S.C. January 13, 2010) (adopting Magistrate Judge’s recommendation that “individual defendants . . . cannot be held liable under the ADA or the Rehabilitation Act in their individual capacities”).
Accordingly, even if all of the allegations against Defendant Sanford in the Complaint are true, he still can not be liable pursuant to the ADA or the Rehabilitation Act, in either his official or individual capacities, as a matter of law. II. Medicaid Act Claim
The Court has recently given the plaintiffs leave to file an amended Complaint, which includes a Medicaid Act claim. In that claim, the plaintiffs contend that the defendants violated 42 C.F.R. § 431.210 “by failing to provide notice complying with the clear mandates of that section by failing to provide legitimate reasons for attempting to reduce services and by failing to cite the specific regulations supporting the reduction of . . . waiver services.” [Doc. 51-1at 59.] The plaintiffs also contend that their rights under 42 U.S.C. 1396, including reasonable promptness, sufficiency, reasonable standards, choice of provider, equal access and adequate payment rates, and assurance of protecting health and welfare and financial accountability, have been violated.
The Court believes, consistent with the above analysis, that, as a matter of law, Defendant Sanford has no legal responsibilities for the due process allegedly due, but not provided. The Ex parte Young considerations should apply here with equal force.
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Notwithstanding, this claim had not been pled at the time of the defendant’s motion to dismiss, and, therefore, the matter is not properly before the undersigned. None of the parties have had occasion to brief it.4 But, if the district court were to reach the matter, it would be the Court’s recommendation that the Amended Complaint is insufficient to suggest any legal duty on the part of the defendant running towards the alleged violations. The principle recommendation, however, is that the issue ought not be considered because it cannot be characterized as having been, as of yet, implicated; in fact, as of this recommendation it was not formally a part of the lawsuit insofar as the Amended Complaint has not been filed. II. Section 1983 Claim
Finally, the defendant contends that the plaintiffs claims pursuant to 42 U.S.C. § 1983 are preempted by the comprehensive remedial schemes of the ADA and the Rehabilitation Act. Various circuit courts of appeals have agreed that the comprehensive remedial schemes of the ADA and the Rehabilitation Act bar identical claims made pursuant to Sections 1983 involving the same predicate incidents of discrimination. See Vinson v.
4 Although the Court has made resort to the language of the Amended Complaint in its discussion above, the circumstances here, related to the Medicaid Act claim, are slightly different. First, the Medicaid Act claim is entirely new. In the same way, as will be discussed below, the new Section 1983 averments create an additional dimension to the previously pled claim. The averments from the Amended Complaint relied upon above, considered in the immunity discussion, do not fundamentally alter the analysis required and were originally and fully briefed by the parties. The Medicaid Act and Section 1983 claims, by contrast, implicate some matters not completely addressed. Second, a resort to those newly added averments, in the context of the immunity analysis, provided the fullest possible opportunity for the plaintiffs’ claims to proceed. The opposite is true here. Recourse to the Amended Complaint concerning the Medicaid and Section 1983 claims, in the absence of briefing from the plaintiffs, might actually increase the chance of their dismissal. Thus, the Court has reached this admittedly, less than satisfactory, compromise.
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Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002); Lollar v. Baker, 196 F.3d 603, 609 (5th Cir. 1999); Alsbrook v. City of Maumelle, 184 F.3d 999, 1011-12 (8th Cir. 1999); Holbrook v. City of Alpharetta, 112 F.3d 1522, 1530-31 (11th Cir. 1997). District courts of this circuit have followed suit, including the District of South Carolina. See Jordan v. Bourcier 2006 WL 783499, at *2-3 (D.S.C. March 24, 2006); Randle v. Historic Columbia Foundation, 2006 WL 2037488, at *4 (D.S.C. July 18, 2006) (dismissing plaintiffs § 1985(3) claim seeking to redress violations of Title VII and ADEA because those statutes provided comprehensive remedies); see also Henderson v. Gilbert, 2006 WL 1966797, at *1 (D. Md. July 10, 2006) (“A plaintiff may not state a claim under 42 U.S.C. §§ 1983 and 1985(3) for rights created by the ADA.”); Walker v. City of Salisbury, 170 F.Supp.2d 541, 549 (D. Md.2001) (ruling that a “plaintiff may not . . . present in this Court a § 1983 cause of action based on an ADA claim arising by reason of his disability).
While the Fourth Circuit has never directly addressed the effect of the ADA on Section 1983 claims, it did conclude that the ADEA’s comprehensive schemed barred such a claim. See Zombro v. Baltimore City Police Dept., 868 F.2d 1364, 1368 (4th Cir. 1989). This district has cited Zombro as strong indication of how the Fourth Circuit might view the effect of the ADA. See Jordan, 2006 WL 783499, at *2. This Court would be inclined to agree.
But, as an important exception to this rule, other courts have concluded that, where a plaintiffs’ section 1983 claims are based on constitutional rights and not the actual substantive rights under the ADA, that remedial scheme does not act with preemptive force.
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See Pathways Psychosocial v. Town of Leonardtown, MD, 223 F. Supp. 2d 699, 708 (D. Md. 2002) (“However, the preemption doctrine in Alsbrook forecloses § 1983 claims for violations of the ADA rather than, as here, claims for the deprivation of constitutional rights”); Baumgardner v. County of Cook, 108 F. Supp. 2d 1041, 1043 (N.D. Ill. 2000) (“. . . Congress did not intend for the ADA to foreclose private claims alleging constitutional violations . . . .”); see also Yates ex rel. Estate of Yates v. Beck, 2003 WL 22231260, at **45 (W.D.N.C. August 22, 2003). Accordingly, it seems doubtful that that portion of the plaintiffs’ Section 1983 claim would be preempted.
The plaintiffs’ amended Count Five (mis-styled as Four) speaks in both respects. It is based in part, and expressly so, on the substantive rights of the ADA and Rehabilitation Act. [Doc. 51-1 at 62, ¶¶ 66-67.] To that extent, it is preempted by the same and, therefore, is not actionable against the defendant Sanford. The plaintiffs “cannot bring a section 1983 claim against the [Governor] in [his] individual [or official] capacities when, as [the undersigned] earlier concluded, [they] could not do so directly under the ADA” or Rehabilitation Act. Alsbrook v. City of Maumelle, 184 F.3d 999 (8th Cir. 1999).
But, the amended Count Five also newly alleges various deprivations of due process related to the plaintiffs’ eligibility hearings, in violation of the Fourth Amendment and the Supremacy Clause of the United States Constitution. Id. at 61-62. While these averments effectively borrow from rights established by the Medicaid Act, the United States Supreme Court has apparently concluded that that particular statutory scheme is not “sufficiently comprehensive to demonstrate a congressional intent to withdraw the private remedy of §
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1983, ” like the ADA. Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 522 (1990). But, more critically, the Court, again, believes itself limited in its ability to treat the
issue because the motion did not address the new averments in the Amended Complaint related to constitutional issues of due process . As indicated, the Court cannot imagine, and the Amended Complaint does not allege, any basis to hold defendant Sanford to account on such allegations. The undersigned, however, feels constrained not to rule.
So, to clarify the status of the claim, the Court would recommend its dismissal to the extent the Section 1983 claim is based on the same substantive rights as the ADA and Rehabilitation claims. To the extent, however, it is based on constitutionally guaranteed procedural rights, the Court cannot, as of yet, resolve it.
CONCLUSION Wherefore, based upon the foregoing, it is RECOMMENDED that the defendant’s motion to dismiss [Doc. 11] be GRANTED as to all causes of action in the plaintiffs’ original Complaint [Doc. 1]. Notwithstanding, the defendant should not be dismissed from the case insofar as additional averments against him, related to newly added Medicaid Act and 42 U.S.C. § 1983 claims, have not been implicated, and, therefore, are not addressed, by the present motion.
IT IS SO RECOMMENDED.

December 6, 2010 Greenville, South Carolina

s/Bruce Howe Hendricks United States Magistrate Judge

14

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION

Peter B., Jimmy “Chip” E.,

)

and Michelle M.,

)

)

Plaintiffs,

)

)

v.

)

)

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Beverly Buscemi, Kelly Floyd,

)

the South Carolina Department

)

of Health and Human Services,

)

the South Carolina Department

)

of Disabilities and Special

)

Needs, Anthony Keck, and

)

Richard Huntress,

)

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Defendants.

)

________________________________

C/A No. 6:10–767-TMC OPINION & ORDER

In their Amended Complaint, Plaintiffs seek declaratory and injunctive relief for alleged violations of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132; Section 504 of the Rehabilitation Act of 1973 (“Section 504"); the Medicaid Act;1 and 42 U.S.C. §§ 1983, 1985, and 1988. (Compl. ¶ 6). This matter is before the court on the Motion to Dismiss and/or Motion for Summary Judgment Based on Mootness and Motion for Summary Judgment filed by Defendants Beverly Buscemi, Kelly Floyd, Richard Huntress, Anthony Keck, South Carolina Department of Health and Human Services (“DHHS”), and the South Carolina Department of Disabilities and Special Needs (“DDSN”) (Dkt. # 169 and 200); and Plaintiffs Peter B., Jimmy “Chip” E., and Michelle M.’s Amended Motion for Summary Judgment (Dkt. # 207). Responses and replies have been filed in regard to these motions. (Dkt. # 175, 181, 215, 214, and

1Title XIX of the Social Security Act, 42 U.S.C. §§ 1396–1396v, is known as the Medicaid Act.

219). These motions are now ripe for ruling.2 I. Background/Procedural History
Medicaid is a cooperative federal-state program designed to furnish medical assistance to persons “whose income and resources are insufficient to meet the costs of necessary medical services.” 42 U.S.C. § 1396. The Centers for Medicare and Medicaid Services (“CMS”) administers the program on behalf of the Secretary of the United States Department of Health and Human Services. While states are not required to participate in Medicaid, all of them do. Ark. Dep't of Health & Human Servs. v. Ahlborn, 547 U.S. 268, 275 (2006). Once a state chooses to participate in the Medicaid program, it must comply with the federal statutory and regulatory scheme. Harris v. McRae, 448 U.S. 297, 301 (1980). Each state’s Medicaid plan must specify a single state agency designated to administer the Medicaid plan. 42 C.F.R. § 431.10(a) and (e). In South Carolina, DHHS is the state agency designated to administer and supervise the Medicaid plan. S.C. Code Ann. § 44-6-30(1).
Plaintiffs in this action are three individuals who have varying degrees of mental and/or physical disabilities. Plaintiff Peter is 43 years old and has moderate mental retardation, hydrocephalus, diabetes, coronary heart disease, an anxiety disorder, and a history of stress-induced seizures. (Am. Compl. ¶ 34). Chip is 38 years old and has normal intelligence, severe cerebral palsy, and a speech disorder, and he is confined to a wheelchair. (Am. Compl. ¶¶ 85-86). Michelle is 37 years old and has profound mental retardation, autism, a seizure disorder, a sleep disorder, Parkinson’s disease, and Cattleman’s disease, and is unable to speak and recently has been confined to a
2The court decides these motions without a hearing as the parties' arguments are fully set forth and supported in the memoranda and exhibits accompanying their motions. See LR 7.08 (stating “[h]earings on motions may be ordered by the Court in its discretion.”).
2

geri-chair or bed. (Am. Compl. ¶¶ 139-140; Pls.’ Mem. Supp. Am. Mot. for Summ. J. at
3).
Plaintiffs participate in a Medicaid waiver program for persons with Mental
Retardation/Related Disabilities (“MR/RD waiver”). (Am. Compl. ¶ 31).3 The MR/RD
waiver program permits the federal government to waive the requirement that certain
disabled persons must live in an institution in order to receive services funded by
Medicaid. 42 U.S.C. § 1396n(c). DHHS contracts with DDSN to operate the MR/RD
waiver program.
Plaintiffs allege Defendants have reduced or eliminated services (or threatened
to do so) provided to them under the MR/RD waiver program and that this diminution in
services will force them into institutions in violation of Olmstead v. L.C. ex rel. Zimring,
527 U.S. 581 (1999). In Olmstead, the Supreme Court held that the “unjustified
institutional isolation of persons with disabilities is a form of discrimination” prohibited by
the ADA. Id. at 2187. The Supreme Court stated:
States are required to provide community-based treatment for persons with mental disabilities when the State's treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.
Id. at 2190.
3As noted in the amicus memorandum, the terms “intellectual disability” and “person with intellectual disability” are being substituted in state law for “mental retardation” and “mentally retarded,” respectively. (Dkt. # 174). Thus, the reference to this waiver as MR/RD is in the process of being replaced by Intellectual Disabilities and Related Disabilities waiver or ID/RD waiver. 2011 South Carolina Laws Act No. 47 (eff. June 7, 2011). However, 42 U.S.C. § 1396n(c) and various other federal laws and regulations still use the nomenclature “mental retardation.” The court will continue to use the MR/RD terminology which was in effect at the time this case was filed and was used by the parties in their pleadings and memoranda.
3

Specifically, Plaintiffs Chip and Michelle challenge reductions which were to take place on January 1, 2010, as a result of a policy change which placed a 28-hour per week cap on personal care attendant (“PCA”) services. (Am. Compl. ¶ 90). PCA services includes hands-on assistance with daily living. At that time, Chip was receiving 52 hours per week and Michelle was receiving 56 hours per week. (Am. Compl. ¶ 142; Defs.’ Mem. Supp. Summ. J. Mot. at 3). Chip and Michelle pursued review of the proposed reductions in state proceedings and their PCA services hours were never reduced.
Plaintiff Peter’s challenges differ. Peter participates in a DSSN residential program, Supervised Living Program II (“SLP II”). Peter has also been receiving MR/RD waiver services, including 12 hours of one-on-one companion services. (Am. Compl. 36, 48). In 2005, Peter was notified that his companion services were being terminated. (Am. Compl. ¶ 50). Peter appealed the final agency decision to DHHS and the hearing officer affirmed finding it lacked subject matter jurisdiction because Peter had failed to establish that the companion services were necessary to keep him out of an institution, and therefore such services were not services covered by the Medicaid waiver. Peter appealed to the Administrative Law Court (“ALC”), which also affirmed.
Peter subsequently appealed the ALC’s decision and, on August 20, 2011, the South Carolina Court of Appeals reversed the ALC’s conclusion that the hearing officer lacked subject matter jurisdiction and remanded the action to DHHS for a hearing. Brown v. S.C. Dept. of Health & Human Servs., 709 S.E.2d 701 (S.C. Ct. App. 2011). Stating that subject matter jurisdiction is determined by the question to be answered and not by the answer, the court held that because Peter alleges his companion services are covered by Medicaid, DHHS had subject matter jurisdiction. Brown, 709 S.E.2d at 704. The court specifically stated it was not reaching the issue of whether
4

companion services qualify as a waiver. Id. at 705. Peter is currently awaiting a hearing before a DHHS officer.
Plaintiffs seek declaratory and injunctive relief finding Defendants have violated the ADA, Section 504, and the Medicaid Act, prohibiting the Defendants from reducing MR/RD Medicaid waiver services, and requiring Defendants to restore all services which were reduced or eliminated. (Am. Compl. ¶¶ 316-318). Further, Plaintiffs seek an order requiring “Defendants to provide all home and community based services which are determined by participants’ responsible treating physicians to be medically necessary, so long as the cost of these services is less than the cost of their care in a Regional Center, except where the orders of the treating physician involve Medicaid fraud or are outside of the reasonable standards of medical care, as determined by responsible and unbiased medical professionals.” (Am. Compl. ¶ 319). Finally, Plaintiffs seek an order declaring that Defendants Keck, Floyd, Huntress, and Buscemi denied Plaintiffs’ civil rights in violation of 42 U.S.C. §§ 1983 and 1988. (Am. Compl. ¶ 321).
II. Standard of Review The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other
5

materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
Accordingly, to prevail on a motion for summary judgment, the movant must demonstrate that: (1) there is no genuine issue as to any material fact; and (2) that he is entitled to judgment as a matter of law. As to the first of these determinations, a fact is deemed “material” if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
Under this standard, the existence of a mere scintilla of evidence in support of the non-movant’s position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248.
III. Discussion As set forth above, Plaintiffs contend Defendants have reduced certain in-home and community based personal health services and this reduction will force them into institutional settings, in violation of the holding in Olmstead. In their Amended Complaint, Plaintiffs allege four causes of action: 1) Violations of the ADA against
6

Defendants Keck, Buscemi, Floyd, Huntress, DHHS, and DDSN; 2) Violations of Section 504 against Defendants Keck, Buscemi, Floyd, Huntress, DHHS, and DDSN; 3) Violations of the Medicaid Act against all individual and agency Defendants; and 4) Violations of Sections 1983 and 1988 against individual Defendants Keck, Buscemni, Floyd, and Huntress. (Am. Compl. ¶¶ 248-302). As noted above, Plaintiffs have filed an amended summary judgment motion (Dkt. # 207), and Defendants have filed a summary judgment motion on the merits (Dkt. # 200) and a motion to dismiss and/or for summary judgment motion based on mootness (Dkt. #169). For the reasons set forth below, the court grants in part Defendants’ motion and denies Plaintiffs’ motion. Further, the court stays the remaining claims pending resolution of the state administrative proceedings.
Defendants contend that two of the Plaintiffs’ claims are moot and all of Plaintiffs’ claims are unripe or currently non-justiciable. (Defs.’ Mem. Supp. Summ. J. Mot. at 1324).4 Specifically, Defendants contend that two Plaintiffs, Chip and Michelle, have prevailed in a case before the South Carolina ALC, and DHHS has not appealed that decision, and further the threatened reductions never actually took place rendering these Plaintiffs’ claims in the present action moot. Further, in regard to all Plaintiffs, Defendants contend that currently there is not a case or controversy and any potential future claims are not ripe. The court agrees that Chip and Michelle’s claims are moot. However, the court finds the claims of Peter are not moot and ripe.
4As noted above, Defendants also filed an earlier motion to dismiss and/or for summary judgment based upon mootness. (Dkt. # 169). In this motion, Defendants seek the dismissal of the claims of Plaintiffs Chip and Michelle. The courts’ decision to grant in part Defendants’ later summary judgment motion provides the same relief, and therefore, moots Defendants’ earlier motion to dismiss and/or for summary judgment. (Dkt. # 169). Furthermore, the court notes that Defendants specifically incorporated their prior filings into their subsequent summary judgment motion. (Dkt. # 200 Defs.’ Mem. Supp. Summ. J. Mot. at 12).
7

Turning to the Amended Complaint, the court notes that Plaintiffs seek the following relief:
1) “that this Court assume jurisdiction over this action and maintain continuing jurisdiction until defendants are in full compliance with every order of this Court.” (Am. Compl. ¶ 315).
2) “an order finding that Defendants included in Counts One and Two have violated the ADA and Section 504 of the Rehabilitation Act as set forth in this Complaint.” (Am. Compl. ¶ 316).
3) “an order finding that the Defendants included in Count Three have violated the Medicaid Act.” (Am. Compl. ¶ 317).
4) “an order prohibiting the Defendants from reducing MR/RD Medicaid waiver services and requiring Defendants to restore all services which were reduced or eliminated by amendments to the State’s Medicaid applications to CMS.” (Am. Compl. ¶ 318).
5) “an order directing Defendants to provide all home and community based services which are determined by participants’ responsible treating physicians to be medically necessary, so long as the cost of these services is less than the cost of their care in a Regional Center, except where the orders of the treating physician involve Medicaid fraud or are outside of the reasonable standards of medical care, as determined by responsible and unbiased medical professionals.” (Am. Compl. ¶ 319).
6) “other relief as shall be determined by this Court to be just and equitable, including payment of legal fees and costs of this action.” (Am. Compl. ¶ 320).
7) “[d]eclare that individual Defendants Sanford, Haley, Keck, Floyd, Huntress and Buscemi have acted to deny the civil rights of the Plaintiffs in violation of 42 U.S.C.
8

§§ 1983 and 1988.” (Am. Compl. ¶ 321).5 Plaintiffs have attempted to broaden the scope of their Amended Complaint by
asserting several new issues and arguments which are not properly before this court as these claims were not raised in the Amended Complaint. For example, in their amended summary judgment motion, Plaintiffs now request an “order requiring DHHS to issue a final determination on all fair hearing appeals brought by MR/RD waiver program participants within 90 days of the request and requiring the hearing officers to base their decisions exclusively on evidence introduced at the hearing . . . . [and] an order prohibiting DHHS officials and hearing officers from participating in ex parte communications with employees of DDSN or other third parties on matters involving pending cases . . . . “ (Dkt. # 207 - Pls.’ Mem. Supp. Am. Summ. J. Mot. at 18)(internal citation and quotation marks omitted). The court has carefully reviewed the Amended Complaint and limits it discussion to those issues and claims raised therein.
First, the court finds it unnecessary to enter a separate order directing Defendants to comply with the court’s orders or to establish its continuing jurisdiction in regard to compliance with its orders. At this time, there are no credible allegations that Defendants currently are not in compliance with the court’s prior orders. Furthermore, if Plaintiffs believe Defendants are violating a court order, they can file an appropriate motion in that regard.
Plaintiffs’ request for a declaration that Defendants’ past conduct violated Section 504, the Medicaid Act, or their due process rights seeks the kind of retrospective relief that the Supreme Court has found to be barred by the Eleventh Amendment. See Green v. Mansour, 474 U.S. 64, 68-73 (1986) (holding that petitioners could not obtain
5Defendants Mark Sanford and Nikki Haley were dismissed from this action on June 13, 2012. (Dkt. # 185).
9

declaratory judgment that a state's former method of calculating welfare benefits
violated federal law where there was no ongoing violation). Nor is this request for relief
covered by the exception recognized by the Supreme Court in Ex Parte Young, 209
U.S. 123 (1908) and its progeny. Where there is an ongoing violation, however, such a
claim remains a viable claim, as discussed below.
As noted above, Plaintiffs also request an order
directing Defendants to provide all home and community based services which are determined by participants’ responsible treating physicians to be medically necessary, so long as the cost of these services is less than the cost of their care in a Regional Center, except where the orders of the treating physician involve Medicaid fraud or are outside of the reasonable standards of medical care, as determined by responsible and unbiased medical professionals.
(Am. Compl. ¶ 319).6 This request for relief appears to apply to only Peter’s claims as
he contends that his companion services are medically necessary. (See Pls.’ Mem.
6It now appears Plaintiffs are seeking different relief in this regard. In their memorandum supporting their Amended Motion for Summary Judgment, Plaintiffs state they are now seeking the following remedial relief:
Plaintiffs request that this Court rule that until State agencies promulgate regulations in compliance with the Medicaid Act and the South Carolina Medical Practice Act that DDSN and DHHS must apply Social Security regulations related to the weight given to the opinions of the treating physicians in determining the need for Medicaid services.
(Pls.’ Mem. Supp. Am. Mot. for Summ. J. Mot. at 26). Citing Doe II, 419 Fed. Appx. 411, Plaintiffs contends the court may do so under its broad equitable powers to style any appropriate remedial relief. First, Plaintiffs did not seek this relief in their Amended Complaint and first raised this request for relief in their summary judgment motion. Moreover, the cases cited by Plaintiffs are distinguishable. Alexander v. Hil, 707 F.2d 780, 783 (4th Cir. 1983), was a class action involving noncompliance with the court’s prior orders, and Smith v. Miller, 665 F.2d 172 (7th Cir. 1981), was also a class action where the court held that the district court did not abuse its discretion by ordering that all requests for Medicaid benefits not timely processed under prior approval procedures were deemed automatically approved. In these cases, the courts were enforcing compliance with prior court orders and the Medicaid Act. Here, Plaintiffs have not established that the state is acting in derogation of any prior orders or the Medicaid Act in its treatment of treating physicians’ opinions.
10

Supp. Am. Summ. J. Mot. at 27).
Finally, Plaintiffs are seeking an order requiring the restoration of all of their
MR/RD waiver services which have been reduced or eliminated and prohibiting
Defendants from reducing their MR/RD waiver services “by amendments to the State’s
Medicaid applications to CMS.” (Am. Compl. ¶ 318). As discussed below, this request
appears to apply only to Chip and Michelle, and their MR/RD waiver services were
never actually reduced based upon the 2010 caps.7 Plaintiffs Chip and Michelle filed an
appeal of DHHS’s administrative decision to reduce or discontinue certain MR/RD
waiver services with the ALC.8 On November 9, 2011, the ALC filed an order reversing
the DHHS’s decisions to reduce and or terminate services or supplies to these Plaintiffs.
(Dkt. # 169 Defs.’ Mem. Supp. Summ. J. Mot. Ex. 2 - ALC’s Order of Nov. 9, 2011).
The ALC held that the actions taken by the DHHS to reduce or cap Plaintiff’s services
did not have the force and effect of law because the caps were not promulgated as a
regulation. Id. at 14. Further, the ALC ordered that the DHHS must provide each
Plaintiff with an evidentiary hearing before taking any further action regarding Plaintiffs’
7Plaintiffs cite to the Report and Recommendation filed in this action on November 24, 2010, in regard to the temporary injunction (Dkt. # 71) as evidence that Chip and Michelle’s service were reduced. (Dkt. # 175 - Pls.’ Mem. Opp. Summ. Defs.’ Summ. J. Mot. at 6). In her report, the Magistrate Judge stated that “there has been a diminution in service hours for both Chip and Michelle, which . . . their treating physicians find significant.” Id. However, it appears that this particular sentence is a misstatement of the facts and Plaintiffs have not presented any evidence which establishes that the services for these Plaintiffs were ever reduced. More accurately, there was a threatened diminution in the services; however, the services were never actually reduced. Furthermore, the Magistrate Judge clearly recognized in her Report that the services provided to Michelle and Chip had never actually been reduced. (See e.g. Report at 23)(stating that “[w]ith an injunction, the defendants will only have to maintain the same level of funding they have provided to the plaintiffs for years and which, in the instance of Michelle M. and Chip W., they maintain even now.”)
8The ALC consolidated four individual appeals because they concerned the same question of law. (Dkt. # 169-2 - ALC’s Order of Nov. 9, 2011, at 2 n.1).
11

benefits under the MR/RD waiver. Id. at 16. DHHS did not appeal this order. There is no ongoing violation of the Medicaid Act, Section 504, or the ADA, in regard to the Plaintiffs Chip and Michelle, and they are receiving the relief requested. Accordingly, it appears their claims are moot.
In response, Plaintiffs argue that they are seeking systemic changes to force the DHHS into compliance with the ADA, Section 504, the Medicaid Act, and the holding in Olmstead. (Dkt. # 175 - Pls.’ Mem. Opp. Defs.’ Summ. J. Mot. at 2). Plaintiffs specifically state that the claims raised in their Amended Complaint are not limited to the January 1, 2010 reductions, but rather allege ongoing and systemic violations. Further, Plaintiffs note that they are requesting an award of attorney’s fees and costs pursuant to 42 U.S.C. § 1988, particularly in light of Defendants’ claim that Plaintiffs have prevailed in this case. (Dkt. # 175 - Pls.’ Mem. Opp. Defs.’ Summ. J. Mot. at 10). Finally, Plaintiffs argue that their claims are not moot because Defendants’ conduct can reasonably be expected to recur. Id. at 12.9 Plaintiffs contend that “[c]ontinuing to apply illegal caps on every waiver participant who does not have a case pending in the federal court is not an appropriate remedy.” (Dkt. # 220 - Pls.’ Mem. Opp. Summ. J. Mot. at 8).
While federal courts may provide prospective injunctive relief where a state is engaged in an ongoing violation of federal law, see Edelman v. Jordan, 415 U.S. 651, 664, 674 (1974), a federal court acting pursuant to the Declaratory Judgment Act may declare the rights of a party only where there exists an “actual controversy.” Steffel v.
9Furthermore, Plaintiffs contend that Defendants continue to enforce a cap of 240 hours per month on respite hours. (Dkt. # 215 - Pl.s’ Mem. Opp. Defs.’ Summ. J. Mot. at 2). Plaintiffs cite to Chip’s affidavit in which he avers: “My service coordinator tells me that no one can go over 240 hours a month of respite care.” (Dkt. # 207-27 ¶3). These general allegations and the evidence cited by Plaintiffs as support are insufficient to create a genuine issue of material fact regarding whether Plaintiffs Chip and Michelle’s services have been reduced.
12

Thompson, 415 U.S. 452, 462 (1974).10 Actions for declaratory or injunctive relief must present a live controversy
justiciable under Article III of the Constitution. See MedImmune, Inc. v. Genentech, Inc., U.S. , 127 S.Ct. 764, 771, 166 L.Ed.2d 604 (2007) (declaratory judgment); City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (injunctive relief). An actual, justiciable controversy must exist not only when the suit is initiated, but also at the time that the party's entitlement to the requested relief is decided. See Golden v. Zwickler, 394 U.S. 103, 108 (1969). It is further settled in this regard that a past injury, without more, cannot form the basis for either injunctive or declaratory relief. See O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974) (“Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.”); see also Green v. Mansour, 474 U.S. at 74 (rejecting the view that “declaratory judgments expressly adjudicating the question of past violations are routinely available”).
To determine whether an “actual controversy” exists, the court must determine “whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy . . . to warrant the issuance of a declaratory judgment.” Golden, 394 U.S. at 108 (quoting Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941)). A party seeking declaratory relief from a prospective violation of the party's rights must show that the grievance is real and immediate, rather than merely conjectural. See Golden,
10The Declaratory Judgment Act provides, in part, that “[i]n a case of actual controversy within its jurisdiction, . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201.
13

394 U.S. at 109. A claim is moot “when the issues presented are no longer ‘live’ or the parties lack
a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969). “The requisite personal interest that must exist at the commencement of the litigation . . . must continue throughout its existence . . . .” U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 397(1980) (quotation omitted). Otherwise, a court's ruling would be an advisory opinion on hypothetical facts. White v. Nat'l Union Fire Ins. Co., 913 F.2d 165, 167 (4th Cir. 1990) (internal quotation omitted).
A claim that is moot may be considered by the Court, however, if it is “capable of repetition, yet evading review.” Fed. Election Comm'n v. Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007). This exception is limited to exceptional situations. See Incumaa v. Ozmint, 507 F.3d 281, 289 (1983). “In the absence of a class action, the ‘capable of repetition, yet evading review’ doctrine [is] limited to the situation where two elements combined: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.” Weinstein v. Bradford, 423 U.S. 147, 149 (1975).
First, as this is not a class action, it is insufficient as a matter of law for Plaintiffs to argue that the challenged conduct may recur as to others; it must be as to the same complaining party. See Spencer v. Kemna, 523 U.S. 1, 17 (1998). Second, simply because it is possible for DHHS to resume its challenged conduct does not create a reasonable expectation that it will. See Am. Legion Post 7 v. City of Durham, 239 F.3d 601, 605–06 (4th Cir. 2001) (finding moot a challenge to a repealed ordinance when, even though the government was “free to re-enact th[e] ordinance,” there was no indication that it would). In fact, courts often give considerable credence to a
14

government's indication that it will not repeat the challenged conduct. See, e.g., Chi.
United Indus., Ltd. v. City of Chi., 445 F.3d 940, 947 (7th Cir. 2006) (holding “when the
defendant is not a private citizen but a government actor, mere is a rebuttable
presumption that the objectionable behavior will not recur . . . .’” (quoting Troiano v.
Supervisor of Elections in Palm Beach Cnty., 382 F.3d 1276, 1283 (11th Cir. 2004)).
See also Nat'l Adver. Co. v. City of Miami, 402 F.3d 1329, 1333 (11th Cir. 2005) (per
curiam) (“[G]overnmental entities and officials have been given considerably more
leeway than private parties in the presumption that they are unlikely to resume illegal
activities.” (quotation omitted)).
There is no indication that in the future Defendants will apply the 2010 caps to
Plaintiffs Michelle and Chip, especially in light of the ALC’s decision.11 In fact, Plaintiffs
themselves have state that “DHHS is now prohibited by these orders from enforcing the
January 1, 2010 caps on services of these two plaintiffs based on the decision of the
Administrative Law Court.” (Dkt. # 166 at 41).
Furthermore, Plaintiffs cannot demonstrate that Defendants’ alleged wrongful
11The court also believes the instant action is distinguishable from the recent Fourth Circuit Court of Appeals’ decision in Pashby v. Delia, 2013 WL 791829 (4th Cir. filed March 5, 2013). In Pashby, a class action suit, Medicaid recipients contended that a specific new policy contravened the ADA, Section 504 of the Rehabilitation Act, and the Social Security Act by imposing stricter eligibility requirements for in-home services. They further alleged that they were not provided sufficient notice of the termination of their services in violation of their due process rights. The Fourth Circuit held that the class action claims were not moot based upon the voluntary dismissal of administrative appeals by the named plaintiffs and reinstatement of the services by the defendants because the behavior is likely to recur. Id. at *4. The court found that the defendants could reassess the recipients’ needs at any time and cancel their services under the challenged policy. First, this is not a class action and, furthermore, Defendants are bound by the ALC’s decision which reversed the decision to reduce and/or terminate Chip and Michelle’s services. Dkt. # 207-30 at 16). Further, the ALC concluded that because the 2010 policy regarding caps was not promulgated as a regulation under state law, Plaintiffs were entitled to a hearing before their services could be reduced. Id. at 14.
15

conduct is capable of repetition, yet evading review simply by broadening the nature of the allegedly wrongful which is challenged. Larsen v. United States Navy, 2012 WL 3672985 (D.D.C. 2012)(holding wrong at issue for mootness purposes is limited to plaintiffs' theory alleged in complaint). See also Clarke v. United States, 915 F.2d 699, 703 (D.D.C. 1990)(“where plaintiffs are resisting a mootness claim . . . they must be estopped to assert a broader notion of their injury than the one on which they originally sought relief.”) 12
Here, Plaintiffs Chip and Michelle in their Amended Complaint challenge the reductions which occurred based upon the 2010 caps. However, now Plaintiffs, in the absence of proper pleadings, seek to permanently prohibit any reduction in Plaintiffs’ waiver services. (See e.g., Dkt. # 175 - Pls.’ Mem Opp. Summ. J. Mot. at 7). Based on the claims before the court, the court cannot prohibit DHHS from reducing these Plaintiffs’ or other individual’s MR/RD waiver services in the future. However, DHHS must provide the appropriate due process if any services are cut or terminated in the future. Furthermore, at this time, any presumption of future violations as to Chip and Michelle would be purely speculative making any opinion the court might render an advisory opinion.
Finally, Plaintiffs contend that the opinion in Doe v. Kidd, 501 S.E.2d 348, 355 (4th Cir. 2007) (“Doe I”), precludes finding Chip and Michelle’s claims are moot. The court disagrees. In Doe, Doe challenged Appellee’s failure to provide her with residential rehabilitation services promptly. Despite Appellees providing Doe with some services,
12Plaintiffs also contend that their request for attorney’s fees pursuant to 42 U.S.C. §1988 renders their claims “live” especially in light of Defendants’ admission that they are the prevailing party. (Dkt. # 175 - Pls.’ Mem. Opp. Defs.’ Summ. J. Mot. at 10). As the court finds at this time Peter’s claims are not moot, the court need not address this issue.
16

the Fourth Circuit found this claim was not moot as there was an ongoing violation based upon Appellee’s admission that Doe was placed in a CTHII for respite services or until her true status is determined. Doe, 501 S.E.2d at 354. The court specifically held that the appellees had not voluntarily ceased the wrongful conduct. Id.13 Here, however, Chip and Michelle’s services have not been reduced and the claims they raised in regard to the threatened reductions which were based upon the 2010 caps are no longer live.
Furthermore, Plaintiffs’ argument that the challenges they are raising are systemic problems and being applied to other waiver participants, (Dkt. # 175 - Pls.’ Mem. Opp. Summ. J. Mot. 8; Dkt. # 220 - Pls.’ Mem. Opp. Summ. J. Mot. at 5, 8), does not render Chip and Michelle’s claims live. While a class action may remain live despite the mootness of the claims of the class representative, see e.g. Sosna v. Iowa, 419 U.S. 393, 401 (1975)(holding when a class representative's claim is mooted after class certification, the Supreme Court has held that federal courts retain jurisdiction over the class action), this action is not a class action. In their Amended Complaint, Plaintiffs challenge only specific actions which were applied to them. While others may be subject to the same actions of Defendants, Plaintiffs may raise only their own claims. Absent a special relationship or class action, the Plaintiffs at the present time do not have standing to assert the rights of these third parties. See Warth v. Seldin, 422 U.S. 490, 499 (1975)(“[T]he plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.”).
Based on the foregoing, the court finds the claims of Chip and Michelle are moot.
13Contrary to Plaintiffs’ assertions, the court did not hold that the claim was not moot because it could reasonably be expected to recur. (See Dkt. # 175 - Pls.’ Mem. Opp. Defs.’ Summ. Jud. Mot. at 12).
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There is no genuine issue of material fact - the waiver services of Chip and Michelle have not been reduced. Moreover, any presumption of future violations in this case would be purely speculative at this time, making any opinion the court might render an advisory opinion.
While Peter’s services have also not been reduced at this time, the claims raised by Peter remain live. The parties dispute whether Peter has requested a hearing, but it is undisputed that Peter has yet to have such a hearing on his claims. In an informal status report requested by the court, the parties represented that a hearing is currently scheduled in Peter’s administrative action for March 12-13, 2013. (Dkt. # 230 at 1). However, in another action currently pending before the court, Kobe v. Keck, et.al., Plaintiffs subsequently filed a letter dated February 26, 2013, addressed to the DHHS hearing officer in which DHHS stated that it had decided not to contest Peter’s appeal and that a hearing was unnecessary. Kobe v. Keck, et.al., C/A No.3:11-cv-1146-TMC Dkt. # 204 Ex. 10). At this time, it appears that Peter’s claims are not moot.
However, the court finds some of Peter’s claims are not yet ripe. The ripeness doctrine “prevent[s] the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies.” Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). The Supreme Court has enunciated two factors relevant to a ripeness decision: first, the fitness of the issues for judicial resolution, and second, the hardship to the parties of withholding court consideration. Id. at 149. “For a claim to be ripe, it must involve an administrative decision [that] has been formalized and its effects felt in a concrete way by the challenging parties.” Pashby, 2013 WL 791829 * 5 (internal citations and quotation marks omitted). “A claim is not ripe for adjudication if it rests upon ‘contingent future events that may not occur as anticipated, or indeed may
18

not occur at all.’” McGhee v. Director, Dept. of Mental Health & Hygiene, 153 F.3d 721 (4th Cir. 1998) (unpublished)(internal quotation and citations omitted). Peter's appeal to the ALC is apparently still pending and the possibility remains that he will receive the relief he seeks. Thus, the injury of which he complains remains contingent upon future events.
“Federal ripeness doctrine . . . counsels against adjudication of questions that might be altered or dissolved by further action in the state court.” Id. In McGhee, the Fourth Circuit remanded the action with instructions for the district court to stay the action pending resolution of the state proceedings. Id. The court noted that “[s]taying any decision pending final state court action is consistent with the dual federal-state nature of the Medicaid system and helps preserve the states' important role in administering the program.” Id. The court finds a stay appropriate in this case as well. Accordingly, the court stays this action pending the resolution of the state proceedings.
Conclusion Based on the foregoing, Defendants’ Summary Judgment Motion (Dkt. # 200) is GRANTED in part and DENIED in part; Defendants’ Motion to Dismiss and/or for Summary Judgment Motion (Dkt. # 169) is DENIED as moot; and Plaintiffs’ Amended Summary Judgment Motion is DENIED (Dkt. # 207). Plaintiffs Chip E. and Michelle M. are dismissed. Further, this action is stayed pending the resolution of the state proceedings. IT IS SO ORDERED.
s/Timothy M. Cain United States District Judge
Anderson, South Carolina March 7, 2013
19

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION

Peter B., Jimmy “Chip” E.,

)

and Michelle M.,

)

)

Plaintiffs,

)

)

v.

)

)

)

Marshall C. Sanford,

)

Beverly Buscemi, Kelly Floyd,

)

the South Carolina Department

)

of Health and Human Services,

)

the South Carolina Department

)

of Disabilities and Special

)

Needs, Nikki Randhawa Haley,

)

Anthony Keck, and Richard Huntress, )

)

Defendants.

)

________________________________

C/A No. 6:10–767-TMC OPINION & ORDER

In their Amended Complaint, Plaintiffs seek declaratory and inj unctive relief for violations of Title II of the Americans with Disabilities Act (“ADA ”), 42 U.S.C. § 12132; Section 504 of the Rehabilitation Act of 1973 (“Section 504"); the Medicaid Act; 1 and 42 U.S.C. §§ 1983, 1985, and 1988. (Compl. ¶ 6). This matter is before the court on the Summary Judgment Motion of Defendants Ma rshall C. Sanford and Nikki Randhawa Haley, the former and current governors of South Carolina, respectively (referred to herein as “Defendants”). (Dkt. # 153). Plai ntiffs have filed a response opposing the

1Title XIX of the Social Security Act, 42 U.S.C. §§ 1396–1396v, is known as the Medicaid Act.

motion and Defendants have filed a reply.2 This motion is now ripe for ruling.
I. Background/Procedural History
Plaintiffs in this action are thr ee individuals who have varying degrees of mental
disabilities and/or physical disabilitie s. Plaintiff Peter B. is 43 years old and has
moderate mental retardati on, hydrocephalus, diabetes, co ronary heart disease, an
anxiety disorder, and a history of stress- induced seizures. (Am. Compl. ¶ 34). Chip E.
is 38 years old and has normal int elligence, severe cerebral palsy, and a speech
disorder and he is confined to a wheelchair. (Am. Compl. ¶¶ 85-86). Michelle M. is 37
years old and has profound mental retardati on, autism, a seizure disorder, a sleep
disorder, and Parkinson’s disease and is unable to speak. (Am. Compl. ¶¶ 139-140).
Plaintiffs participate in a Medicaid waiver program for persons wit h Mental
Retardation/Related Disabilities (“MR/ RD waiver”). (Am. Compl. ¶ 31). 3 The MR /RD
waiver program permits the feder al government to waive the requirement that certain
disabled persons must live in an instituti on in order to receive services funded by
Medicaid. 42 U.S.C. § 1396n(c).
2The court notes that Plaintiffs’ Memorandum in Opposition to Defendants’ Motion is thirty-five pages in length. Plaintiffs did not seek the court’s permission to exceed the fifteen-page limit provided in Local Civil Rule 7.05 (B)(2) DSC. The court accepts the memorandum, but admonishes counsel to abide by the rules in future filings.
3As noted in one of the amicus memorandum filed in this action, the terms “intellectual disability” and “person with intellectual disability” are being substituted in state law for “mentally retardation” and “mentally retarded,” respectively. (Dkt. # 174). Thus, the reference to this waiver as MR/RD is in the process of being replaced by Intellectual Disabilities and Related Disabilities waiver or ID/RD waiver. 2011 South Carolina Laws Act No. 47 (eff. June 7, 2011). However, 42 U.S.C. § 1396n(c) and various other federal laws and regulations still use the nomenclature “mental retardation.” The court will continue to use the MR/RD terminology which was in effect at the time this case was filed and was used by the parties in their pleadings and memoranda.
2

Medicaid is a cooperative federal-state program designed to furnish medical assistance to persons “whose income and res ources are insufficient to meet the costs of necessary medical services.” 42 U.S. C. § 1396. The Centers for M edicare and Medicaid Services (“CMS”) administers the program on behalf of the Secretary of the United States Department of Health and Human Services. While states are not required to participate in Medicaid, all of them do. Ark. Dep't of Health & Hum an Servs. v. Ahlborn, 547 U.S. 268, 275 (2006). Once a state c hooses to participate in the Medicaid program, it must comply with the feder al statutory and r egulatory scheme. Harris v. McRae, 448 U.S. 297, 301 (1980).
Each state’s Medicaid plan must s pecify a single state agency designat ed to administer the Medicaid plan, and no other state agency can possess or be delegated discretion over the administrat ion of the plan. 42 C.F.R. § 431.10(a) and (e). In South Carolina, the South Carolina Department of Health and Human Services (“SCDHHS”) is the state agency designated to administer and s upervise the Medicaid plan. S.C. Code Ann. § 44-6-30(1). SCDHHS is headed by a Director appointed by the Governor. S.C. Code Ann. § 44-6-10.
The South Carolina Department of Dis abilities and Special Needs (“SCDDSN”) provides services to individuals with head and spinal cord injuries and those with developmental disabilities, such as mental retardation and autism. S.C. Code Ann. 4421-10. SCDDSN is led by a director appoi nted by the South Carolina Commission on Disabilities and Special Needs (“Commissi on”). S.C. Code Ann. §§ 44-20-220 and 44-20-230. The Commission is an advisory board cons isting of seven members appointed by the Governor. S.C. Code Ann. § 44-20-225.
The majority of SCDDSN’s funding comes through SCDHHS from the Medicaid program. SCDHHS contracts with the SCDDSN to operate the MR/RD waiver program.
3

When an individual in Sout h Carolina applies for DDSN

services, including the waiver program, DHHS first

determines whether the individual is eligible for Medicaid

funding. Thereafter, DDSN determines whether the individual

is eligible for DDSN services and, if so, what “level of care”

the individual requir es. To be given the option under the

waiver program of receiving services at home or in the

community, rather than in an institution, indiv iduals must first

qualify for the In termediate Care Facility for the Mentally

Retarded (“ICF/MR”) level of care-that is, they must meet the

criteria necessary to reside in an institution like a nursing

home. If approved, waiver servic es are provided in a variety

of settings including, in order of

restrictiveness: (1) a

Supervised Living Program II (“S LP II”), an apartment where

recipients of DDSN services live together; (2) a Community

Training Home I (“CTH I”), a private foster hom e where a

recipient of DDSN services resides with a family, one

member of whom is a tr ained caregiver; and ( 3) a

Community Training Home II (“CTH II”), a group home with

live-in caregivers for four or fewer recipien ts of DDSN

services.

Doe v. Kidd, 501 F.3d 348, 350 (4th Cir. 2007).

Plaintiffs allege Defendants have reduced or eliminated services provided to

them under the MR/RD waiver program and that this diminution in services will force

them into institutions in violation of Olmstead v. L.C. ex rel. Zim ring, 527 U.S. 58 1

(1999). In Olmstead, the Supreme Court held that the “unjustified institutional isolation

of persons with disabilities is a form of discrimination” prohibited by the ADA. Id. at

2187. The Supreme Court stated:

States are required to prov ide community-based treatment for persons wit h mental di sabilities when the State's treatment professionals determi ne that such placement is appropriate, the affect ed persons do not oppose such treatment, and the placem ent can be reasonably accommodated, taking into acc ount the resources available to the State and the needs of others with mental disabilities.

Id. at 2190.

Plaintiffs seek declaratory and injuncti ve relief finding Defendants have violated

the ADA, Sect ion 504 of the Rehabilitation Act, and the Medicaid Act, prohibiting the 4

Defendants from reducing MR/RD Medicaid waiver services, and requiring Defendants to restore all services which were reduced or eliminated. (Am. Compl. ¶¶ 316-318). Further, Plaintiffs seek an order requi ring “Defendants to provide all ho me and community based services which are determi ned by participants’ responsible treating physicians to be medically necessary, so long as the cost of these services is less than the cost of their care in a Regional Center , except where the orders of the t reating physician involve Medicaid fraud or are out side of the reasonable standards of medical care, as determined by responsible and unbias ed medical professionals.” ( Am. Compl. ¶ 319). Finally, Plaintiffs seek an order declaring that Defendants Sanford, Haley, Keck, Floyd, Huntress, and Buscemi denied Plaintiffs’ civil rights in violat ion of 42 U.S.C. §§ 1983 and 1988. (Am. Compl. ¶ 321).4
II. Standard of Review The court shall grant summary judgment “i f the movant shows that there is no genuine dispute as to any material fact and t he movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a) . The mov ant bears the initial burden of demonstrating that summary j udgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 23 (1986). If a movant asserts that a fact cannot be disputed, it must support that as sertion either by “citing to particular par ts of materials in the record , including depositions, documents,
4Originally, Plaintiffs asserted three claims against Sanford pursuant to: 1) Title II of the ADA; 2) Section 504 of the Rehabilitation Act, and 3) Section 1983 for violations of the ADA and the Rehabilitation Act. The court dismissed all of these claims against Sanford. At that time, however, Sanford was not dismissed as a defendant because Plaintiffs had sought to file an Amended Complaint to include new claims under the Medicaid Act and § 1983. The court did not rule on whether these new claims should also be dismissed because the claims were not properly before the court at that time.
5

electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admi ssions, interrogatory answers, or other materials;” or “showing . . . that an adv erse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
Accordingly, to prevail on a motion for summary judgment, the movant must demonstrate that: (1) there is no genuine issue as to any material fact; and (2) that he is entitled to judgment as a matter of law. As to the first of these determinations, a fact is deemed “material” if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). An issue of material fact is “genui ne” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
Under this standard, the ex istence of a mere scintilla of evidence in suppor t of the non-movant’s position is insufficient t o withstand the summary judgment motion. Anderson, 477 U.S. at 252. Lik ewise, conclusory allegations or denials, without more, are insufficient to preclude t he granting of the summary judgment motion. Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985). “Only disputes over facts that might affect the outcome of the suit under the governing law will pr operly preclude the entry of summary judgment. Fa ctual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248.
III. Discussion As set forth above, Plaintiffs cont end Defendants have reduced certain in-home and community based personal health services and this reduction will f orce them into
6

institutional settings, in violation of the holding in Olmstead. Plaintiffs allege four causes
of action: 1) Violations of the ADA agai nst Defendants Keck, Buscemi, Floyd, Huntress,
SCDHHS, and SCDDSN; 2) Violations of Section 504 of the Rehabilitation Act against
Defendants Keck, Buscemi, Floyd, Huntre ss, SCDHHS, and SCDDSN; 3) Violations of
the Medicaid Act against all individual and agency Defendants; and 4) Violat ions of
Sections 1983 and 1988 against individual Defendants Sanford, Haley, Keck, Buscemni,
Flord, and Huntress. (Am. Compl. ¶¶ 248-302). Plaintiffs state that are suing Defendant
Sanford only in his individual capacity and Def endant Haley only in her official capacity.
(Am. Compl. ¶¶ 11, 18). 5 The court notes that only the last two causes of action are
alleged against the moving Defendants Sanford and Haley.6
1. Sovereign Immunity
Defendants contend that Plai ntiffs’ claims against them regarding violations of
the Medicaid Ac t are barred by the El eventh Amendment. The Eleventh Amendment
bars suits against a State in federal court.7 However, Eleventh Amendment immunity is
5Plaintiffs originally sued then Governor Sanford in both his official and individual capacities. During the pendency of this action, Haley succeeded Sanford as governor. Therefore, pursuant to Rule 25 (d)(1), Fed.R.Civ.P., in regard to only the official capacity claims, Governor Haley was substituted for former Governor Sanford in the Amended Complaint. Fed.R.Civ.P. 25(d)(1) (providing “[w]hen a public officer is a party to an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and the officer's successor is automatically substituted as a party.”). Sanford remained a party only in his individual capacity. (See Dkt. # 106 - Court’s Order discussing automatic substitution of parties).
6As noted, the court previously dismissed the ADA and Section 504 Rehabilitation Act claims against Defendant Sanford. (Dkt. # 93).
7The Eleventh Amendment provides:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
7

not absolute. See Port Authority Trans–Hudson Corp. v. Feeney , 495 U.S. 299, 304
(1990). In Ex parte Young , 209 U.S. 123 (1908), the Su preme Court r ecognized a
narrow exception for claims brought against i ndividual state office rs acting in their
official capacities if the complaint all eges an ongoing violation of feder al law and the
plaintiff seeks prospective relief. Verizon Md. Inc. v. Pub. Serv. Com m'n of Md. , 535
U.S. 635, 645 (2002). The Ex parte Young exception creates a f iction by allowing a
person to enjoin future state action by suing a state official for prospective inj unctive
relief rather than the state itself. Additionally, the Eleventh Amendment “does not permit
judgments against state officers declaring that they violated feder al law in the past.”
Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993).
Defendants Sanford and Haley do not dispute that t he Ex Parte Young doctrine
allows a plaintiff to sue a state of ficial in his official capacity for prospective injunctive
relief. (Defs.’ Reply Mem. at 2). Rather, these Defendants argue that Ex Parte Young
does not apply in this case because the gov ernors did not have the requisite connection
to the enforcement of the pertinent Medicaid provisions. Id. at 7.
Ex parte Young requires a “special relation” between the state officer sued and the cha llenged statute t o avoid the Eleventh Amendment's bar. Ex parte Young , 209 U.S. at 157, 28 S.Ct. 441. “Gener al authority to enforce the laws of the state is not sufficient to make government officials the proper parties to litigation challenging the law.” Children's Healthcare is a Legal Duty, Inc. v. Deters , 92 F.3d 1412, 1416 (6th Cir.1996) (internal quotation marks omitted). Thus, “[t]he mere fact that a governor is under a general duty to enforce state laws does not make him a proper defendant in every action attacking the constitu tionality of a state statute.” Shell Oil Co. v. Noel, 608 F.2d 208, 211 (1st Cir.1979). Waste Mgmt. Holdings, Inc. v. Gilm ore, 252 F.3d 316, 331 (4 th Cir. 2001). As long as
U.S. CONST. amend. XI.
8

the state official “has some connection with t he enforcement of the act,” that official is an “appropriate defendant.” Shell Oil v. Noel , 608 F.2d 208, 211 (1st Cir.1979). “It is a question of federal jurisdictional law whether the connection is sufficiently intimate to meet the requirements of Ex parte Young.” Id.
An official's general authority to enforce the laws of a state is not sufficient to make a government official a proper par ty in an action challenging a law. Waste Mgmt. Holdings, 252 F.3d at 331. Further, the power to make appointments to agency boards is insufficient, even coupled with general enf orcement duties and veto/approval powers to establish that a s tate official falls under the exception set forth in Ex parte Young . Kuck v. Danaher , 822 F. Sipp. 2d 109 ( D. Conn. 2011)(citing Kelly v. Burks , 414 F.Supp.2d 681, 686 (E.D. Ky. 2006). See also D.G. ex rel. Stricklin v. Henry , 591 F. Supp. 2d 1186, 1189 (N.D. Okla. 2008) (holdi ng despite governor’s power to make appointments to the entity that acted unconstitutionally, the governor is not responsible for actually administering the foster case system); LensCrafters, Inc. v. Sundquist , 184 F. Supp. 2d 753, 757-59 (M.D.Tenn. 2002) (finding Eleventh Amendment bars suit against governor when only nexus between gov ernor and challenged action by board was governor’s power to make appoint ments to board); Sweat v. Hull, 200 F. Supp. 2d 1162, 1175-76 (D. Ariz. 2001) (dismissing claim against Governor who signed allegedly unconstitutional bill into la w and appointed the c abinet official responsible for enforcing that law).
Here, in regar d to the alleged Medicaid violations, Plaintiffs contend that Defendants violated their right s under 42 U. S.C. § 1396, by failing to provide services with reasonable promptness and sufficiency, employ reasonable standards, allow choice of provider, provide equal access, and assure that the health and welfare of all participants are protected. (Am. Compl. ¶ 296). Plaintif fs also allege Defendants
9

violated their due process rights under 42 C. F.R. § 431. 210 by failing to provide a

hearing, notice, legitimate reasons for attempting to reduce services, and citation to

specific regulations suppor ting a reduction. (Am. Compl. ¶¶ 290; 292). The hearing

and notice requirements set forth in 42 C.F.R. § 431 are placed upon the state Medicaid

agency and not the governor. Further, while 42 C.F.R. § 430. 12 provides the governor

is to review and comment on a state’s

Medicaid plan, this does not create any

enforcement rights in the gov ernor. Therefore, as a pr actical matter, to impose an

injunction on the governor to cure any alleged problems based on 42 C.F.R. § 431 or 42

U.S.C. § 1396 would have no real effect. Moreover, while the Governor of South

Carolina has the power to appoint and general supervisory authority, as noted above,

neither appointment power nor general supervi sory power over persons responsible for

enforcing a challenged provision will subject an official to suit. L.A. County Bar Ass'n v.

Eu, 979 F.2d 697, 704 (9th Cir.1992) (citations omitted); LensCrafters, Inc. v. Sundquist,

184 F. Supp. 2d at 757-59.

The court finds that Plaintiffs’ all egations against Defendants Sanf ord and Haley

are not sufficient to meet the require ments of the exception espoused in Ex parte

Young. Accordingly, they should be dismissed in their official capacities.8

8Again, as the court has noted, Plaintiffs specifically state that Defendant Sanford is named only his individual capacity. (Am. Compl. ¶ 11). However, some allegations in the Amended Complaint could be construed as claims against Defendant Sanford in his official capacity. (See e.g. Am. Compl. ¶ 12). Therefore, out of an abundance of caution, the court has included Defendant Sanford, to the extent that he is named in his official capacity as to any claim, in its discussion of Eleventh Amendment immunity.
10

2. Section 1983 Claims against Defendant Sanford9
In Count IV, Plaintiffs allege a “vio lation of 42 U. S.C. §1983" against the
“individual Defendants,” specifically defined to include Defendants Sanford and Haley.10
In order to state a claim under § 1983, Plaint iffs must allege that the conduct of which
they complain was comm itted by a person acting under the color of state law and that
the conduct deprived them of rights, priv ileges, or immunities secured by the
Constitution or laws of the Un ited States. 42 U.S.C. § 1983. See, e.g., West v. Atkins ,
487 U.S. 42, 48 (1988). Plaintiffs allege t he individual Defendants acted in concert to
violate Plaintiffs’ due process rights under the Fourt eenth Amendment by denying
Plaintiffs a fair hearing, as required by 42 C.F.R. § 431.205, and by failing to render a
9Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured. . . . .
“Section 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a method for vindicating federal rights elsewhere conferred’ . . . [t]he first step in [analyzing] any such claim is to identify the specific [federal] right allegedly infringed.” Albright v. Oliver, 510 U.S. 266, 271 (1994) (citation omitted) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). In this count, Plaintiffs also assert violations of 42 U.S.C. § 1988. The court will not discuss § 1988 because it merely provides for attorneys' fees in actions brought pursuant to § 1983, § 1985, and § 1986 and does not, itself, provide an independent cause of action.
10Plaintiffs’ references to the “individual” Defendants should not be construed as claims against Defendant Haley in her individual capacity. The court reiterates that Plaintiffs specifically state Defendant Haley is being sued only in her official capacity (Am. Compl. ¶ 18) and the court has already determined that she should be dismissed based upon Eleventh Amendment immunity. However, even if Plaintiffs alleged such a claim against Defendant Haley, it would be dismissed as there are no allegations to support such a claim.
11

final decision within ninety days of the receip t of a request for a hearing, as required by 42 C.F.R. § 431.221. (Am. Compl. ¶ 305). A dditionally, Plaintiffs allege Defendants violated their rights under the Medicaid Act by diverting funds under the guise of budget reductions and the Supremacy Claus e11 by implementing stat e agency policies which conflict with the directives of the Medicaid Act and the Constitution. (Am. Compl. ¶¶ 304; 306). Plaintiffs seek an order declaring their rights under the Medicaid Act and an award of fees, costs, and expenses. (Am. Compl. ¶¶ 313-314).
Reviewing the factual allegations in the Amended Complaint against Sanford, Plaintiffs allege that Sanford “was respons ible for directing, supervising and controlling” SCDHHS and all long term care prog rams for disabled persons. (Am. Compl.¶ 11). Plaintiffs allege Sanford exc eeded the authority of the governor’s office by causing the diversion of funds which were to be used to provide services to Plaintiffs and other disabled persons. (Am. Compl. ¶ 13). Pl aintiffs allege Sanford was informed about alleged civil rights violations, violations of the Medicaid Act, and misappropriation of funds, but failed to correct or prevent thes e problems. (Am. Compl. ¶ 14). Further, Plaintiffs allege Sanford refused to appoint three consumer advisory boards as required by S.C. Code Ann. § 44-20-225. (Am. Compl. ¶ 17). Fina lly, Plaintiffs allege Sanford ignored reports of financial mismanagement and prevented public review of the actions taken by SCDDSN. (Am. Compl. ¶ 17).
As stated above, the hear ing and notice r equirements set forth in 42 C.F.R. § 431 are placed upon t he state Medicaid agency and not the governor. Thus, the decision not to afford Plaintiffs notice or a hearing resid es with SCDHHS and not the Governor. Furthermore, there are no allegat ions that Sanford knew or acquiesced in
11The Supremacy Clause provides that “the Laws of the United States . . . shall be the supreme Law of the Land. . . .” U.S. CONST. art. VI, cl. 2.
12

the deprivation of hearings or notice. Likewise, decis ions regarding Plaintiffs’ Medicaid

services were not made by the Governor.

Other than the allegat ion that he diverted funds, Plaintiffs have not alleged that

Defendant Sanford was personally involved in reducing their Medicaid services. Rather,

Plaintiffs merely assert that Sanford had supervisory responsibilities over those persons

who did commit the alleged acts. However, there is no respondeat superior liability

under § 1983. See Monell v. Dep’ t. of Soc. Servs. , 436 U.S. 658 (1978); see also

Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir.1997). Instead, “liability will lie where it is

affirmatively shown that the official char ged acted personally in the deprivation of t he

plaintiff's rights.” Vinnedge, 550 F.2d at 928.

In Ashcroft v. Iqbal , 556 U.S. 662, 677 (2009), the Supreme Court held that

allegations of unconstitutional violations in volving discrimination require a showing of

discriminatory intent by each defendant and held that “the term ‘supervisory liability’ is a

misnomer.” In Iqbal, a Pakistani M uslim was arrested on criminal charges in New York

City shortly after the September 11, 2001, terrorist attacks and detained by federal

officials under restrictive conditions. Id. at 1942. Iqbal sued pursuant to § 1983, alleging

that he had been unconstitutionally mistreat ed because of polic ies put in place by

various government officials, including t hen-Attorney General John Ashcroft and

Federal Bureau of Investigati on Director Robert Mueller. Id. Because vicarious liability

is inapplicable to Bivens suits, the court held that a plaintiff must “plead that each

Government-official defendant, through the official's own individual actions, has violated

the Constitution,” rather than assert that the higher-ranking offi cials were subject to

supervisory liability. Id. at 1948. The Court held:

Respondent's conception of “superviso ry liability” is in consistent

with his accurate stipulation that petitioners ma y not be held accountable

for the misdeeds of their agents. In a § 1983 suit or a

Bivens

13

action—where masters do not answer for the torts of their servants—the term “supervisory liability” is a mis nomer. Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct. In the context of determining whether there is a violation of clearly est ablished right to overcome qualified immunity, purpose rather than knowledge is required to impose Bivens liability on the subordinate for unconstitutional discrimi nation; the same olds true for an official charged with v iolations arising from his or her superintendent responsibilities.
Id. The dissent in Iqbal opined that “[l]est there be any mistake, in these wor ds the
majority is not narrowing the scope of supervisory liability; it is eliminating [ ] supervisory
liability entirely.” Id. at 1957 (Souter, J., dissenting).12 Accordingly, Sanford is not liable
under § 1983 based upon Plaintiffs’ allegations of supervisory liability.
As to Plaintiffs’ allegations that Sanf ord diverted funds when he voted to approve
SCDDSN’s purchase of real estate, this a llegation also does not establish liability
against Sanford in his individual capacity under § 1983 for two reasons. First, as pointed
out by the Defendants, SCDDSN sought approval for this real estate purchase to use
excess debt service funds. Debt service funds for SCDDSN were established pursuant
to S.C. Code Ann. § 44- 20-1170 to pay for capital improvement projects. If there is
excess money in this fund, § 44-20-1170 (B) provides that the State Budget and Control
Board may approve the transfer of the ex cess funds “out of the special fund for contract
awards to local disabilities and special needs boards for needed improvements at the
local level and for nonrecurring prevention, assistive technology, and quality initiatives at
the regional centers and local boards.” T he approval of the purchase of the real estate
did not divert funds which could have been used to provide services to Plaintiffs.
12Even if the Court did not entirely eliminate the concept of supervisory liability in § 1983 cases, the allegations in the Amended Complaint in this case fail to establish liability on such a theory based on prior Fourth Circuit precedent. See Carter v. Morris, 164 F.3d 215, 221 (4th Cir.1999); Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.1994) (outlining the requirements to hold a supervisor liable for constitutional injuries inflicted by their subordinates).
14

Second, the court finds Sanford is entitled to legislat ive immunity. In Bogan v. Scott–Harris, 523 U.S. 44, 53–54 (1998), the Suprem e Court held that city council members were entitled to absolute immu nity from § 1983 liability for “actions taken in the sphere of legitimate legislative activity.” The Court f ound that the council's action in eliminating certain services was legislativ e in substance because their action “reflected a discretionary, policymaking decision implicating the budgetary priorities of the city and the services the city provides to its constituents.” Id. at 55–56. This absolute legislative immunity does not apply only to legis lators. Id. at 55. The Supreme Court acknowledged that executive branch officials are entitled to legisl ative immunity when they perform legislative functions such as making discretionary policy decisions that implicate budgetary priorities and the provision of public services. Id. at 55-56.13
Moreover, a number of United States Courts of Appeals have specifically applied the doctrine of legislative i mmunity to state governors. See e.g. Empress Casino Joliet Corp. v. Blagojevich, 638 F.3d 519, 529 (7th Cir. 2011) (finding governor was entitled to absolute immunity in regard to allegations that he “took bri bes in exchange for influencing the state legislature to pass t he Racing Acts and for s igning the Acts into law”); Baraka v. McGreevey, 481 F.3d 187, 200-02 (3d Cir. 2007)(holding that Governor of New Jersey was entitled to legislative immunity when he recommended that the state legislature repeal the positi on of State Poet Laureate and si gned the repeal into law); Torres-Rivera v. Calderon-Serra, 412 F.3d 205, 213 (1st Cir. 2005)(holding “a governor who signs into law or vetoes legislation pa ssed by the legislat ure is also entitled to absolute immunity for that act.”); Women's Emergency Network v. Bush , 323 F.3d 937,
13Legislative immunity applies to claims for declaratory and injunctive relief, as well as claims for damages. Supreme Court of Virginia v. Consumers Union of the U.S., Inc., 446 U.S. 719, 732–33 (1980).
15

950 (11th Cir. 2003)(“Under the doctrine of abs olute legislative immunity, a governor cannot be sued for signing a bill into law.”). “Whether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it.” Bogan, 523 U.S. at 54.
In a c ase similar to the instant action, Lewis v. N.M. Dep't of Health , 275 F.Supp.2d 1319 ( D.N.M. 2003), the court addr essed whether the former New Mex ico Governor was entitled to legislative immunity when the plaintiffs alleged violations of the Medicaid Act and the ADA, and w here the plaintiffs asserted that “they were entitled to less restrictive home and community-based services with ‘reasonable promptness' instead of the institutional ca re they were receiving. ” Id. at 1323. The court found the governor was entitled to legislative immunity , noting that the “[p]laintiffs' allegations regarding Defendant Governor Johnson's actions, either directly or indirectly, concern what they perceive to be inadequate funding and support” for the services they desired. Id. at 1326. The court explained that “funding for any state program is a budgetary and policy decision for the state to make,” and asserted that the governor’s “actions in preparing a budget are an integral par t of the legislative process.” Id. at 1327 (internal quotations omitted). Here, voting to approv e SCDDSN’s purchase of real estate with excess debt service funds was clearly legislative action. Moreover, the court in Lewis concluded that the governor’s pronouncement of policy objectives and advice to s tate officials that the growth of particular programs should be lim ited was also “legislative in nature.” Id. at 1327-28. Likewise, here, many of Plaintiffs’ allegations against Sanford are based on Sanford's positions and policies and how he acted as Governor from a policy standpoint and not his personal invo lvement regarding this § 1983 action. Accordingly, he is entitled to legislative immunity.
Finally, even if the court could award Plai ntiffs injunctive relief against Sanford in 16

his individual c apacity, the requested injuncti ve relief is improper. Plaintiffs’ §1983

claims against Sanford involve allegati ons regarding Sanford’s past conduct when he

was governor. As Defendant Sanford is now currently a pr ivate citizen, he is not

involved in any ongoing constitutional deprivat ions and he could not provide Plaintiffs,

should they prevail, with the injunctive relief t hey seek. The undisputed fact is that he

would have absolutely no role to play in

regard to providing Plaintiffs with any

prospective relief. In addition to legislative immunity, because Plaintiffs fail to allege any

personal involvement on t he part of Sanfor d and fail to make any allegations which

reveal the presence of the required elements for supervisory liability, Sanford should be

granted summary judgment on the § 1983 claims alleged against him.14

IV. Conclusion

Based on the foregoing, Defendants’ Su mmary Judgment Motion (Dkt. # 153) is

GRANTED and Defendants Sanford and Haley are dismissed from this action.

IT IS SO ORDERED.

s/Timothy M. Cain United States District Judge

Greenville, South Carolina June 13, 2012
14The court notes Plaintiffs argue that the court should not dismiss Plaintiffs’ claims pending a decision by the Supreme Court in Douglas v. Independent Living Centers, U.S. , 132 S.Ct. 1204, 182 L.Ed.2d 101 (2012). (Pls.’ Mem. at 31). That case was decided on February 22, 2012, and thus the request to postpone a resolution of the instant motion is now moot. Moreover, Douglas is wholly inapplicable. In Douglas the Supreme Court remanded the action to the Ninth Circuit to address whether a plaintiff may bring a Supremacy Clause challenge where the allegedly non-compliant state law has been approved by CMS. The action before this Court does not challenge a state statute, let alone one that has been approved by CMS.
17

 
 6:10-cv-00767-TMC Date Filed 07/01/14 Entry Number 256-1 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION

Peter B., Jimmy “Chip” E. and Michelle M.,
Plaintiffs,
v.
Beverly Buscemi, Kelly Floyd, the South Carolina Department of Health and Human Services, the South Carolina Department ) of Disabilities and Special Needs, Anthony Keck, and Richard Huntress,
Defendants.

)

)

Civil Action Number:

)

6:10-767-TMC

)

) MEMORANDUM IN SUPPORT OF

) DEFENDANTS’ MOTION TO DISMISS

) REMAINING ISSUES AS MOOT

)

)

)

)

)

)

)

)

)

For the reasons set forth herein, the remaining Defendants listed in the caption

above have moved to dismiss the claims of Peter B., which are the only claims left in this

case, on the ground of mootness.

FACTS

When this action was filed in 2010, Plaintiff Peter B. alleged that he was entitled

to an order from this court restoring twelve weekly hours of adult companion services,

originally terminated by DDSN in 2005. The services had been kept in place through

mid-2009, when the South Carolina Administrative Law Court affirmed a DHHS

administrative decision terminating the services. Plaintiff did not ask the Court of

Appeals to stay the termination of services until more than a year later. Prior to that

belated request, Plaintiff in the spring of 2010 sought a preliminary injunction from this

6:10-cv-00767-TMC Date Filed 07/01/14 Entry Number 256-1 Page 2 of 5
Court to have the services restored during the pendency of this litigation. In March 2011, Judge Childs issued a preliminary injunction ordering that pending this litigation, Peter’s adult companion services be restored in the quality, kind, and volume enjoyed by Peter prior to July 2009. ECF No. 95 at 7.1
Peter’s representatives appealed the 2009 ALC decision to the Court of Appeals, which reversed and remanded for a hearing on the merits in 2011. Brown v. South Carolina Dept. of Health and Human Services, 393 S.C. 11, 709 S.E.2d 701 (Ct. App. 2011). The ultimate issue to be determined in the course of the remand was whether the twelve weekly hours of adult companion services should be provided to Peter.
Before the remand hearing was held before the DHHS hearing officer in early 2013, the Defendants in the present case moved for summary judgment on the ground that Peter’s federal claims were not ripe for decision, there having been no final decision by a state tribunal as of that time on the issue of whether the services should be provided. ECF No. 200. In an order filed on March 7, 2013, this Court agreed that Peter’s claims were not ripe at that time. The Court did not dismiss Peter’s claim, as Defendants had suggested might be appropriate, but instead elected to stay this action pending the resolution of the state proceedings. ECF No. 231 at 19.
As Defendants have previously stated to the Court, DHHS in early 2013 advised the hearing officer that the agency had decided not to contest the case on the merits, after considering the litigation cost in continuing to litigate the action. See ECF No. 241-1, the
1 That order became superfluous just a few weeks later, when the Court of Appeals remanded Peter’s state case to the HHS Hearing Officer. Brown v. South Carolina Dept. of Health and Human Services, 393 S.C. 11, 709 S.E.2d 701 (S.C. Ct. App. 2011). That remand had the effect of returning the case to the status of being on appeal before the agency’s hearing officer. Services are continued in effect when a case is in that status.
2

6:10-cv-00767-TMC Date Filed 07/01/14 Entry Number 256-1 Page 3 of 5
March 12, 2013 Order of the hearing officer, at 3. The hearing officer accordingly dismissed the case as moot. Id. The same Order, noting the consent of DHHS, provided that the services be provided by the “qualified provide[r] of the Petitioner’s [Peter’s] choice, in the same amount, duration, and scope as Petitioner received one-on-one services at the time of Petitioner’s appeal in 2005.” Id. at 8.
Peter’s counsel appealed that order to the Administrative Law Court, but nether party asserted on appeal that the services should not be restored. The ALC affirmed the hearing officer’s decision, primarily because the claims made in that court by Peter were made for the first time on appeal. See ECF No. 247-1 (2/4/14 ALC Order). Peter’s thencounsel filed a protective Notice of Appeal, along with a motion to be relieved as counsel, which was granted by the Court of Appeals by Order dated April 28, 2014. ECF No. 247-2. The same Order provided that “Appellant has thirty days to obtain new counsel, or this Court will presume Appellant is proceeding pro se.” Id. That period expired on June 30, 2014, and so far nothing has been filed on Peter’s behalf with the Court of Appeals. In any event, nothing that might occur in that case in the future would affect the clear mootness of the present federal case, because even if the appeal goes forward, neither party contends in that case that the services should not be restored.
ARGUMENT Peter’s federal claims have been rendered moot by the 2013 Order of the DHHS hearing officer. The pertinent law on mootness has been summarized by this Court in its Order dismissing the other two Plaintiffs from this case as follows:
A claim is moot “when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496
3

6:10-cv-00767-TMC Date Filed 07/01/14 Entry Number 256-1 Page 4 of 5
(1969). “The requisite personal interest that must exist at the commencement of the litigation . . . must continue throughout its existence . . . .” U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 397(1980) (quotation omitted). Otherwise, a court's ruling would be an advisory opinion on hypothetical facts. White v. Nat'l Union Fire Ins. Co., 913 F.2d 165, 167 (4th Cir. 1990) (internal quotation omitted).
A claim that is moot may be considered by the Court, however, if it is “capable of repetition, yet evading review.” Fed. Election Comm'n v. Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007). This exception is limited to exceptional situations. See Incumaa v. Ozmint, 507 F.3d 281, 289 (1983). “In the absence of a class action, the ‘capable of repetition, yet evading review’ doctrine [is] limited to the situation where two elements combined: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.” Weinstein v. Bradford, 423 U.S. 147, 149 (1975).
Order of March 7, 2013, ECF No. 231 at 14. Applying those legal principles, this Court
dismissed the claims of the other two Plaintiffs, noting the existence of a DHHS hearing
officer Order that prohibited the agencies from enforcing the service caps that formed the
basis for those two Plaintiffs’ contentions in the present federal case. Id. at 15.
For the same reasons that applied to the claims of the other Plaintiffs, Peter’s
claim is now moot. The relief sought by Peter in the Amended Complaint in this case was
to have his adult companion services restored. Amended Complaint, ECF No. 108 at 8-
10, ¶¶ 41-46, 11-12, ¶¶ 51-55, and 16, ¶ 83. As with the prior Plaintiffs, that relief has
now been granted in the form of an Order issued by the DHHS hearing officer. Peter now
has no credible claim that the restoration of adult companion services is likely to be
reversed at any time in the future. As the Court has held with respect to the other two
Plaintiffs, now dismissed, “any presumption of future violations . . . would be purely
speculative making any opinion the court might render an advisory opinion.” 3/7/13
4

6:10-cv-00767-TMC Date Filed 07/01/14 Entry Number 256-1 Page 5 of 5
Order, ECF No. 231, at 16. Simply put, the services have not only been restored, they
have been restored by the hearing officer’s Order, and there is no reasonable basis for
concluding that there is any longer a live issue about whether the adult companion services will continue to be made available to Peter.2
Finally, for the reasons set forth by Defendants in their Response to Plaintiff’s
Status Reports, ECF No. 255, there is still a question about whether Ms. Harrison is still
authorized to represent Peter. Defendants’ counsel has no knowledge at all on that issue,
nor on the question of whether Mr. Anthony, the other counsel of record for Peter, is still
authorized to represent Peter. This is a matter that might warrant inquiry by the Court.
CONCLUSION
For the foregoing reasons, Peter’s claims, the only remaining claims in the case,
should be dismissed as moot.
Respectfully submitted,
DAVIDSON & LINDEMANN, P.A.
BY: s/ Kenneth P. Woodington WILLIAM H. DAVIDSON, II, Fed. I.D. No. 425 KENNETH P. WOODINGTON, Fed. I.D. No. 4741
DAVIDSON & LINDEMANN, P.A. 1611 DEVONSHIRE DRIVE, 2ND FLOOR POST OFFICE BOX 8568 COLUMBIA, SOUTH CAROLINA 29202-8568 wdavidson@dml-law.com kwoodington@dml-law.com T: 803-806-8222 F: 803-806-8855 ATTORNEYS for Defendants
July 1, 2014
2 Damages have never been sought in this case, so there is no live claim of money damages that could now be made.
5

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION

Peter B., Jimmy “Chip” E.,

)

and Michelle M.,

)

)

Plaintiffs,

)

)

v.

)

)

)

Beverly Buscemi, Kelly Floyd,

)

the South Carolina Department

)

of Health and Human Services,

)

the South Carolina Department

)

of Disabilities and Special

)

Needs, Anthony Keck, and

)

Richard Huntress,

)

)

Defendants.

)

________________________________ )

C/A No. 6:10–767-TMC OPINION & ORDER

This matter is before the court on the Motion to Dismiss filed by Defendants Beverly Buscemi, Kelly Floyd, Richard Huntress, Anthony Keck, South Carolina Department of Health and Human Services (“DHHS”), and the South Carolina Department of Disabilities and Special Needs (“DDSN”) (ECF No. 256); and Plaintiff Peter B.’s Motion to Redact (ECF No. 280) and Motion to Withdraw and Bifurcate (ECF No. 286). Responses and replies have been filed in regard to these motions. (ECF Nos. 264, 277, 284, and 293). These motions are now ripe for ruling.1
I. Background/Procedural History Plaintiff Peter B. (hereinafter referred to as “Plaintiff”) is approximately 43 years old and has moderate mental retardation, hydrocephalus, diabetes, coronary heart disease, an anxiety

1The court decides these motions without a hearing as the parties' arguments are fully set forth and supported in the memoranda and exhibits accompanying their motions. See LR 7.08, D.S.C. (stating “[h]earings on motions may be ordered by the Court in its discretion.”).

disorder, and a history of stress-induced seizures. (ECF No. 108, Am. Compl. ¶ 34). He
participates in a Medicaid waiver program for persons with Mental Retardation/Related Disabilities (“MR/RD waiver”). (Am. Compl. ¶ 31).2 Plaintiff alleges that Defendants have
reduced or eliminated, or threatened to reduce or eliminate, the services which are provided to
him under the MR/RD waiver program and that this diminution in services will force him into an institution in violation of Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999).3
Prior to 2005, Plaintiff was receiving MR/RD waiver services, including 12 hours of one-
on-one companion services. (Am. Compl. 36, 48). In 2005, Plaintiff was notified that his one-
on-one companion services were being terminated. (Am. Compl. 50). Plaintiff appealed the
final agency decision to DHHS and the hearing officer affirmed finding it lacked subject matter
jurisdiction because Plaintiff had failed to establish that the companion services were necessary
to keep him out of an institution, and therefore such services were not services covered by the
Medicaid waiver. Plaintiff appealed to the Administrative Law Court (“ALC”), which also
affirmed.
Plaintiff’s one-on-one companion services continued through mid-2009 until the South
Carolina Administrative Law Court’s (“ALC)” affirmance. In 2010, Plaintiff sought a
preliminary injunction from this court to have the services restored during the pendency of this
2The terms “intellectual disability” and “person with intellectual disability” are being substituted in state law for “mental retardation” and “mentally retarded,” respectively. (ECF No. 174). Thus, the reference to this waiver as MR/RD is in the process of being replaced by Intellectual Disabilities and Related Disabilities waiver or ID/RD waiver. 2011 South Carolina Laws Act No. 47 (eff. June 7, 2011). However, 42 U.S.C. § 1396n(c) and various other federal laws and regulations still use the nomenclature “mental retardation.” The court will continue to use the MR/RD terminology which was in effect at the time this case was filed and was used by the parties in their pleadings and memoranda.
3 In South Carolina, DHHS is the state agency designated to administer and supervise the Medicaid plan. S.C. Code Ann. § 44-6-30(1). DDSN provides services to individuals with head and spinal cord injuries and those with developmental disabilities, such as mental retardation and autism.
2

litigation and on March 7, 2011, United States District Judge J. Michelle Childs issued a preliminary injunction ordering that Plaintiff’s services be restored to the quality, kind, and volume enjoyed by Plaintiff prior to July 2009. (ECF No. 95 at 7).
On August 20, 2011, the South Carolina Court of Appeals reversed the ALC’s determination that the hearing officer lacked subject matter jurisdiction and remanded the action to DHHS for a hearing. Brown v. S.C. Dept. of Health & Human Servs., 709 S.E.2d 701 (S.C. Ct. App. 2011). Stating that subject matter jurisdiction is determined by the question to be answered and not by the answer, the court held that because Plaintiff alleges his companion service is covered by Medicaid, DHHS had subject matter jurisdiction. Brown, 709 S.E.2d at 704. The court specifically stated it was not reaching the issue of whether companion services qualifies as a waiver. Id. at 705.
Before the remand hearing was held, Defendants moved for summary judgment in the instant action on the ground that Plaintiff’s federal claims were not ripe for decision as there was no final decision by a state tribunal as of that time on the issue of whether the services should be provided. (ECF No. 200). The court agreed and stayed this action as to Plaintiff pending the resolution of the state proceedings. (ECF No. 231 at 19).4
On March 12, 2013, the hearing officer dismissed the case as moot after DHHS informed her that the agency was not going to contest the case on the merits. (ECF No. 241-1 at 4-9). Plaintiff appealed that order to the ALC, and on February 4, 2014, the ALC affirmed the hearing officer’s decision. (ECF No. 247-1 at 2-9). Thereafter, Plaintiff’s counsel filed a Notice of Appeal and a motion to be relieved as counsel with the South Carolina Court of Appeals. On April 28, 2014, the South Carolina Court of Appeals granted the motion to be relieved and informed Plaintiff that he had thirty days to obtain new counsel, or proceed pro se. (ECF No.
4The court found the claims of the other Plaintiffs Chip E. and Michelle M. were moot. 3

247-2 at 2).5 Defendant SCDHHS filed a motion to dismiss on the grounds that the appeal is moot and Plaintiff failed to file an initial brief and the appeal. On October 10, 2014, in response to Plaintiff’s claim that he never received the April 28th Order, the South Carolina Court of Appeals appointed an attorney for Plaintiff and directed him to file a memorandum addressing the mootness claims within thirty days. On December 3, 2014, Plaintiff’s counsel filed a letter with the South Carolina Court of Appeals conceding the action was moot.
Here, Plaintiff seeks only declaratory and injunctive relief finding Defendants have violated the ADA, Section 504 of the Rehabilitation Act, and the Medicaid Act, prohibiting the Defendants from reducing MR/RD Medicaid waiver services, and requiring Defendants to restore all services which were reduced or eliminated. (Am. Compl. ¶¶ 316-318). Further, Plaintiff seeks an order requiring “Defendants to provide all home and community based services which are determined by participants’ responsible treating physicians to be medically necessary, so long as the cost of these services is less than the cost of their care in a Regional Center, except where the orders of the treating physician involve Medicaid fraud or are outside of the reasonable standards of medical care, as determined by responsible and unbiased medical professionals.” (Am. Compl. ¶ 319). Finally, Plaintiff seeks an order declaring that Defendants Keck, Floyd, Huntress, and Buscemi denied Plaintiff’s civil rights in violation of 42 U.S.C. §§ 1983 and 1988. (Am. Compl. ¶ 321).
II. Standard of Review The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth
5In light of Peter B.’s disabilities, the court questions, but expresses no view, whether Peter B. could proceed pro se in the state court action.
4

specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
Accordingly, to prevail on a motion for summary judgment, the movant must demonstrate that: (1) there is no genuine issue as to any material fact; and (2) that he is entitled to judgment as a matter of law. As to the first of these determinations, a fact is deemed “material” if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
Under this standard, the existence of a mere scintilla of evidence in support of the nonmovant’s position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Ross v. Comm’n Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248.
III. Discussion As set forth above, Plaintiff contends that Defendants have reduced his adult companion
5

services. Defendants contend Plaintiff’s claims have been rendered moot by the 2013 Order of the DHHS hearing officer. Plaintiff argues that “according to [Plaintiff’s] guardian, Carolyn Brown, [Plaintiff] has not received these one-on-one services since they were terminated in 2009.” (ECF No. 264 at 2). Plaintiff now seeks an order requiring “Defendants provide twelve hours of ‘Personal Care Attendant’ services with an allowance for transportation costs.” (ECF No. 264 at 7). Plaintiff now also includes allegations that Defendants have purged their records which he alleges is a violation of his right to present evidence. (ECF No. 264 at 9).
In a prior order, this court dismissed the claims of the other plaintiffs in this action finding them moot and stayed the action as to Plaintiff Peter B.’s claims while the action was pending in state court. (ECF No. 231). Plaintiff Peter B. seeks to have his adult companion services restored. (Am. Compl. ¶ 318). As with the other Plaintiffs, that relief has now been granted and any presumption of future violations would be purely speculative making any opinion the court might render an advisory opinion.
A claim is moot “when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969). “The requisite personal interest that must exist at the commencement of the litigation . . . must continue throughout its existence . . . .” U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 397(1980) (quotation omitted). Otherwise, a court's ruling would be an advisory opinion on hypothetical facts. White v. Nat'l Union Fire Ins. Co., 913 F.2d 165, 167 (4th Cir. 1990) (internal quotation omitted). A claim that is moot may be considered by the Court, however, if it is “capable of repetition, yet evading review.” Fed. Election Comm'n v. Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007). This exception is limited to exceptional situations. See Incumaa v. Ozmint, 507 F.3d 281, 289 (1983). “In the absence of a class action, the ‘capable of repetition, yet evading review’ doctrine [is] limited to the situation where two elements combined: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or
6

expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.” Weinstein v. Bradford, 423 U.S. 147, 149 (1975).
The court discussed the issue of mootness in depth in its prior order. (ECF No. 231). Briefly, the court again notes the relief sought by Plaintiff in the Amended Complaint. Plaintiffs sought declaratory and injunctive relief finding Defendants violated the ADA, Section 504, and the Medicaid Act, prohibiting the Defendants from reducing MR/RD Medicaid waiver services, and requiring Defendants to restore all services which were reduced or eliminated. (Am. Compl. ¶¶ 316-318). Further, Plaintiffs sought an order requiring “Defendants to provide all home and community based services which are determined by participants’ responsible treating physicians to be medically necessary, so long as the cost of these services is less than the cost of their care in a Regional Center, except where the orders of the treating physician involve Medicaid fraud or are outside of the reasonable standards of medical care, as determined by responsible and unbiased medical professionals.” (Am. Compl. ¶ 319). Finally, Plaintiffs seek an order declaring that Defendants Keck, Floyd, Huntress, and Buscemi denied Plaintiffs’ civil rights in violation of 42 U.S.C. §§ 1983 and 1988. (Am. Compl. ¶ 321). In its prior order, the court addressed the relief requested and ruled that Plaintiff’s claims regarding his failure to receive a hearing was not moot and additionally that Plaintiff’s claims were not ripe because his appeal to the ALC was still pending and the possibility remained that he would receive the relief he sought. (ECF No. 231).
Plaintiff argues that a state’s administrative fair hearing process does not prevent a medicaid waiver participant from suing in federal court for violations of the Medicaid Act. The court is not saying anything to the contrary. The court is merely holding that Plaintiff has received the relief he sought in his Amended Complaint. And, to the extent that he is now seeking different relief, that claim is not before the court.
Plaintiff is now specifically seeking an order that Defendants provide him with a 7

Personal Care Attendant (“PCA”). Plaintiff contends that the only provider of one-on-one
services in Spartanburg County is the Charles Lea Center, and the Charles Lea Center has
refused to rehire Peter’s long time one-on-one caregiver. (ECF No. 264 at 6).6 Plaintiff
therefore seeks PCA services which he argues “would be in keeping with the stated intent of
Judge Childs’ order, to restore [Plaintiff’s] services to the amount kind and quality received prior
to 2009.” (ECf No. 264 at 6). The court disagrees. It is undisputed Plaintiff was not receiving
PCA services in 2009, and if he wishes to seek PCA services, rather than companion one-on-one
services, he is free to do so. But at this juncture, Plaintiff’s claim in this action is now moot. He
6Based upon this, Plaintiff contends that he is not receiving the one-on-one services as ordered by Judge Childs, and notes that Plaintiff’s mother Carolyn Brown (“Brown”) contends that he has not received these services since 2009. (ECF No. 264 at 2). This issue has been previously raised in this action. On June 13, 2011, Plaintiff filed a Motion to Compel Defendants to comply with the preliminary injunction ordered by Judge Childs. (ECF No. 114). Magistrate Judge Jacquelyn D. Austin denied the motion. (ECF No. 132). Plaintiff filed a motion for reconsideration (ECF No. 139), which Judge Austin denied. (ECF No. 155). In her order, Judge Austin noted that Plaintiff
alleged the services were not the same quality because Defendants refused to rehire Lee Knowles (“Knowles”), [Plaintiff’s] long-time companion who was well trained in providing services to [Plaintiff], and instead hired a “hodgepodge of poorly trained staff” to provide services. [Plaintiff] alleged the services were “not the same kind because his prior companion services were provided by one individual who developed a close relationship with [Plaintiff] while currently his services are provided by a ‘parade of poorly trained employees of an agency that is hostile to [Plaintiff’s] guardian.’” Finally, “[Plaintiff] alleged the services were not the same amount because his prior services were provided on a consistent schedule and were over and above the services provided by regular Charles Lea Center staff.”
(ECF No. 155 at 1-2) (citations to motion omitted). Judge Austin also noted that, in their response to the motion to compel, Defendants averred, as Plaintiff now agrees, that the Charles Lea Center is the only qualified provider of one-on-one services in Spartanburg County, and the providers suggested by Plaintiff were not contractually qualified to provide services to the DDSN. (ECF No. 155 at 2). Plaintiff did not appeal Judge Austin’s orders to the district court, and the court will not re-visit this issue. See Fed.R.Civ.P. 72(a)(stating that a party may serve and file objections to a magistrate judge’s order on non-dispositive matters within 14 days and “may not assign as error a defect in the order not timely objected to.”). Moreover, it appears that Plaintiff has now changed his argument and is seeking PCA services, rather than one-on-one services.
8

cannot avoid the mootness of his claim by declining the one-on-one services and demanding
PCA services.
Plaintiff then contends that even if his wavier services had been restored, he has raised
other issues which are not moot. (ECF No. 264 at 7). Specifically, Plaintiff contends that
(1) the failure to comply with 42 C.F.R. 431.210 notice requirements of the Medicaid Act and this violation of federal law is subject to repetition, yet it has evaded review. Amended Complaint at 51, 91, 92, 93, 164, 177 and 290.
(2) failing to provide comparable Medicaid services to Medicaid waiver participants as are available to the general public and to pay adequate rates to providers so that these services will be available to waiver participants. 42 U.S.C. 1396a(a)(30). Amended Complaint at 3 and 292.
(3) failing to provide MR/RD (ID/RD) Medicaid waiver services in sufficient amount, duration and scope to meet the goals of the program. 42 U.S.C. 1396a(a)(10). Moore v . Cook, Civil Action File 1:07-CV-631 (N.D.Ga. April 19, 2012) Amended Complaint at 3, 200, 292.
(4) failing to implement and employ reasonable standards in the administration of the Medicaid program. 42 U.S.C. 1396a(a)(17). Amended Complaint paragraphs 3, 7, 292, 294 and 315.
(5) failing to give the greatest of deference to the treating physician in determining medical necessity, as required by Olmstead v. L.C., 527 U.S. 581 (1999). Amended Complaint paragraphs 83, 217 and 315.
6) failing to inform waiver participants of all feasible alternatives under the waiver. 42 U.S.C. § 1396n(c)(2)(c). Amended Complaint at 3, 138 and 292.
(7) failing to assure that the health and welfare of waiver participants is protected. 42 C.F.R. 431.302. Amended Complaint at 3, 7, 26, 200, 218, 237, 247, 292, 294 and 309.
(8) violating the Medicaid Act by promoting the monopoly of the local DSN Boards and those private corporations which SCDDSN has historically treated as local DSN Boards, thereby reducing Plaintiffs’ freedom of choice of providers. 42 U.S.C. § 1396a(a)(23). Amended Complaint at 3, 7, 139, 213, 221, 233, 292, 293, 294, 305.
(9) violating the Americans with Disabilities Act by failing to meet the State’s burden to prove that providing the services requested and making the systemic changes describe in the Amended Complaint would fundamentally alter the State’s system and failing to make reasonable accommodations requested by the Plaintiffs. Amended Complaint at 2, 6, 8, 33, 126, 178, 185, 186, 214, 230, 248, 254, 259, 260, 264, 268, 270 and 313.
9

(10) violating Peter’s rights under the Medicaid Act and the ADA by diverting funding, under the guise of “budget reductions” when the cost of the ID/RD program actually increased after caps were placed on services. Exhibits 3 and 4 demonstrate that the cost of the program increased by more than $50 million in 2010, when DHHS claimed to impose caps and reductions due to severe budget reductions. The per capita cost actually increased from approximately $37,000 per participant to more than $50,000 per participant, according to letters from CMS to the director of DHHS. Id.
(11) violating the Due Process Clause of the Fourteenth Amendment and the requirements of Goldberg v. Kelly, 397 U.S. 254 (1970) by denying Plaintiffs’ right to a fair hearing meeting the requirements of 42 U.S.C. 1396a(a)(3), 42 C.F.R. § 431.205. Amended Complaint at 4, 6, 7, 229, 288, 289, 294, 302 and 307.
(12) violating the Supremacy Clause of the United States Constitution by implementing state agency policies which conflict with the clear requirements of the Medicaid Act and the United States Constitution. Amended Complaint at 6, 295 and 303.
(13) retaliating against Peter and the providers who have advocated for him by terminating, or attempting to terminate their certification as MR/RD Medicaid waiver providers, including Jackie Walker and Lennie Mullis, who had been identified as witnesses in this and other cases when Defendants terminated their certification to provide services. (Ms. Mullis’ certification was subsequently restored after she brought a second administrative appeal in which the state tribunal again found that her certification was terminated in violation of her right to due process. Defendants quit paying Ms. Mullis for psychological services provided to Peter beginning in March of 2009 and refused to pay her for many months. Entry 166-10). Entries 220-8 at 20, 166-10, 175-4 at 22, 175-8 at 53 and 54. See also Entry 166-11 re families’ fear of retaliation. Amended Complaint at 85 and 304.
(14) depriving Peter of due process property rights and attempting to deprive him of life, liberty and property in violation of the Fourteenth Amendment of the United States Constitution. Amended Complaint at 6, 302 and 307.
(ECF No. 251-1 at 5-7).7 While Plaintiff might have raised other issues in the Amended
Complaint, which have not been specifically addressed, reviewing these issues the court finds
that resolution of these issues is not necessary in light of the relief Plaintiff sought in his
Amended Complaint. The relief Plaintiff sought in the Amended Complaint (Am. Compl. ¶¶
7The court declines to consider Plaintiff’s unsupported allegations that the record on appeal was purged.
10

315-321) has been addressed either in the court’s prior or provided by Defendants, rendering his claims moot.
Plaintiff has filed a Motion to Redact seeking the redaction of apparently all the testimony and written documents provided by Plaintiff’s mother, Brown, during the hearing held on July 10, 2014, on the ground that the they contain false and misleading information. (ECF No. 280). Defendants oppose the motion. (ECF No. 284). As the Defendants point out, the motion to redact violated Fed. R. Civ. P. 7(B)(1)(b), as it does not state with particularity why the testimony or information should be redacted. In the reply, Plaintiff contends that Brown has acknowledged that she has not paid $100,000.00 in legal fees, and no legal fees or costs have been paid in this federal litigation by anyone. Further, Plaintiff contends that other information Brown provided to the court does not accurately reflect the circumstances surrounding counsel’s request to withdraw from representation in state court. (ECF No. 286 at 2).
The public has a strong interest in access to court documents. The Fourth Circuit has directed that prior to sealing judicial records, a district court must first determine the source of the public's right to access the judicial records: the common law or the First Amendment. Stone v. Univ. of Md., 855 F.2d 178,180 (4th Cir. 1988). If the common law right of access to judicial records applies, there is a presumption of public access to judicial records, which can only be-rebutted if countervailing interests outweigh the public's interest in access. Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir.1988). “Some of the factors to be weighed in the common law balancing test ‘include whether the records are sought for improper purposes, such as promoting public scandals or unfairly gaining a business advantage; whether release would enhance the public's understanding of an important historic event; and whether the public already had access to the information contained in the records.’ “ Virginia Dep't of State Police v. Washington Post, 386 F.3d 567, 575 (4th Cir. 2004) (quoting In re Knight Publ. Co., 743 F.2d 231, 235 (4th Cir. 1984)). Under the common law balancing test, some of the factors include
11

whether the records are sought for improper purposes, such as promoting public scandals or unfairly gaining a business advantage; whether release would enhance the public's understanding of an important historical event; and whether the public has already had access to the information contained in the records. Id.
The right to access judicial records under the First Amendment has a more limited scope than the common law rights. The First Amendment right of access attaches if: (1) the place and process have historically been open to the press and general public; and (2) public access plays a significant positive role in the functioning of the particular process in question. Hill v. Kenworth Truck Co., C/A No. 2:07-0223, 2008 WL 4058426, at *2 (S.D.W.Va. Aug. 26, 2008) (internal quotation marks and citations omitted). The party seeking to restrict access bears the burden of overcoming a First Amendment right to access claim and must present specific reasons to support restriction of access. Id. at *3.
Under either standard, Plaintiff’s motion should be denied. Plaintiff’s only asserted reason for seeking to redact is the allegations that the statements are untrue. Whether the declarations are true or false is not an issue before the court at this time and, in any event, is not a proper consideration in the analysis of a motion to seal. See Doe v. JBF RAK, LLC, 2014 WL 5286512 (D.Nev. 2014) (“If this were the standard, virtually any complaint that contains allegations that are embarrassing or damaging to the defendant's reputation could be sealed until the allegations are proven.”). Moreover, as the Supreme Court has recognized, an “erroneous statement is inevitable in free debate, and . . . it must be protected if the freedoms of expression are to . . . survive.” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 271-72 (1964). See also Doe v. Public Citizen, 749 F.3d 246 (4th Cir. 2014). Accordingly, Plaintiff has not rebutted the presumption of the public's right to access of court records. Further, the court finds that the public's interest in access outweighs Plaintiff's interest in redacting the testimony and
12

documents.8 Therefore, the court denies Plaintiff’s Motion to Redact. After Defendants’ Motion to Dismiss was fully briefed, Plaintiff’s counsel and GAL
filed a motion to withdraw as counsel and guardian, respectively, and bifurcate the claims of Plaintiff Chip E. from the claims of Plaintiff Peter B. (ECF No. 286).9 Defendants do not oppose the motion. (ECF No. 293). The court grants Plaintiff’s Motion to Withdraw. However, based on the court’s ruling on the Motion to Dismiss, Plaintiff’s Motion to Bifurcate (ECF No. 286) is denied as it is now moot.
Finally, the court notes that after the Motion to Withdraw was filed, Brown filed several documents with the court in an apparent attempt to represent Plaintiff’s interests in this action. (ECF Nos. 290, 291, 292, 296, 298). It is well settled that a pro se litigant may not represent another individual or entity in federal court, and a minor or incompetent plaintiff cannot proceed without counsel in a civil action. See Myers v. Loudoun Cnty. Pub. Schools, 418 F.3d 395, 401 (4th Cir. 2005) (“We therefore join the vast majority of our sister circuits in holding that non-attorney parents generally may not litigate the claims of their minor children in federal court.”). See also Whitehurst v. Wal-Mart, 306 F. App'x 446, 449 (11th Cir. 2008) (“[W]hile . . . [Fed.R.Civ.P.] 17 authorizes a conservator or guardian to sue on behalf of a minor child, . . . a non-lawyer parent has no right to represent a child in an action in the child's name.”)); KLA v. Windham Se. Supervisory Union, 348 F. App'x 604, 605-06 (2d Cir. 2009) (“Although litigants in federal court have a statutory right to act as their own counsel, 28 U.S.C. § 1654, the statute does not permit ‘unlicensed laymen to represent anyone other than themselves.’ That prohibition extends to non-lawyer parents seeking to represent their children, and the representation of
8More accurately, the interest appears to be that of Plaintiff’s counsel, rather than Plaintiff.
9Plaintiffs informed the court that Plaintiff Michelle M. died April 18, 2014. (ECF No. 253 at 7).
13

incompetent adults.” citations omitted)).10 The court specifically advises Brown that she cannot represent Plaintiff in this or any future litigation.11
Conclusion Based on the foregoing, Defendants’ Motion to Dismiss (ECF No. 256) is GRANTED; Plaintiff’s Motion to Withdraw and Bifurcate (ECF No. 286) is GRANTED in part and DENIED in part; and Plaintiff’s Motion to Redact is DENIED (ECF 280). IT IS SO ORDERED.
s/Timothy M. Cain United States District Judge
Anderson, South Carolina December 10, 2014
10The court notes that “[o]rdinarily, a court will not consider pro se submissions from a party represented by counsel.” Non-Punitive Segregation Inmates of Holmesburg Prison v. Kelly, 589 F.Supp. 1330 (E.D.Pa.1984), aff'd, 845 F.2d 1014 (3d Cir.1988). See also In re Moody, 105 B.R. 368, 373 (S.D.Tex.1989) (all papers filed by the party while he was represented by counsel were stricken by the court because a party appearing “by counsel has no right to personally conduct, or assist counsel in conducting, the litigation of his case.”).
11The motion does not include the requirements set forth in the local rule, L.R. 83.I.07, D.S.C. However, the mailing address and phone number of Plaintiff’s guardian, Brown, are of record, and clearly base upon brown’s filings with the court, Brown has received notice of the motion. Additionally, through this order, the court has informed Brown that she may not proceed without counsel as she cannot represent Plaintiff. Supra at 13. Further, the court also notes that, while it appreciates Brown’s desire to assist her son, the court has not considered Brown’s filings in ruling on the above motions. Plaintiff’s counsel fully briefed the motion to dismiss prior to moving to be relieved.
14

 
 6:10-cv-00767-TMC Date Filed 04/29/16 Entry Number 327 Page 1 of 5

Appeal: 15-1039 Doc: 64

Filed: 04/29/2016 Pg: 1 of 5

UNPUBLISHED UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1039
JIMMY CHIP E, Plaintiff – Appellant,
and MICHELLE M; PETER B; KAREN W,
Plaintiffs, v. BEVERLY BUSCEMI; KELLY FLOYD; SOUTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, The; SOUTH CAROLINA DEPARTMENT OF DISABILITIES AND SPECIAL NEEDS, The; ANTHONY KECK; RICHARD HUNTRESS; NIKKI RANDHAWA HALEY; MARSHALL C. SANFORD,
Defendants – Appellees, and EMMA FORKNER,
Defendant.

Appeal from the United States District Court for the District of South Carolina, at Greenville. J. Michelle Childs, District Judge; Timothy M. Cain, District Judge. (6:10-cv-00767-TMC)

Submitted: April 21, 2016

Decided: April 29, 2016

Before MOTZ, SHEDD, and KEENAN, Circuit Judges.

6:10-cv-00767-TMC Date Filed 04/29/16 Entry Number 327 Page 2 of 5

Appeal: 15-1039 Doc: 64

Filed: 04/29/2016 Pg: 2 of 5

Affirmed by unpublished per curiam opinion.
Patricia Logan Harrison, Columbia, South Carolina; Kenneth C. Anthony, Jr., ANTHONY LAW FIRM, Spartanburg, South Carolina, for Appellant. William H. Davidson, II, Kenneth P. Woodington, DAVIDSON & LINDEMANN, P.A., Columbia, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.

2

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Appeal: 15-1039 Doc: 64

Filed: 04/29/2016 Pg: 3 of 5

PER CURIAM: Jimmy Chip E (“Chip”), a participant in South Carolina’s
Medicaid waiver program, appeals from the district court’s order dismissing his claims as moot. We have reviewed the parties’ briefs and the joint appendix, and we find no reversible error. Accordingly, we affirm substantially for the reasons stated by the district court. E v. Buscemi, No. 6:10-cv-00767-TMC (D.S.C. Mar. 7, 2013).
We address two issues separately. First, Chip contends that he has a right to receive services ordered by his treating physician and that Defendants’ failure to promptly provide such services violates the Medicaid Act, 42 U.S.C. § 1396a (2012), and 42 U.S.C. § 1983 (2012). As a result, Chip asserts that this portion of his complaint was improperly dismissed. Chip’s claim is without merit for several reasons.
First, Chip rests his claim on a one-page 2010 affidavit from his treating physician. This does not purport to be an “order,” nor does it state that, in the absence of the specific care recommended, Chip would face risk of institutionalization. Second, while a treating physician’s opinion is entitled to deference, agencies are not bound by a treating physician’s statement. See 42 U.S.C. § 1396n(i)(1)(G)(ii)(I)(aa) (2012) (providing that the treating physician should be consulted in determining a care plan); see also Moore ex rel. Moore v. Reese,
3

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637 F.3d 1220, 1255 (11th Cir. 2011) (holding that a private physician’s word is “not dispositive”). Finally, there is no evidence in the record that Chip or his physician formally requested any additional services. Had he done so, any denial or unreasonable delay would be subject to review through the state administrative process, and potentially beyond. See Doe v. Kidd, 501 F.3d 348, 351-52 (4th Cir. 2007) (describing the process for service and assistance requests in South Carolina).
Next, Chip raised a claim that his due process rights were violated when he did not receive the proper notification and hearing prior to the denial, reduction, or termination of his services. However, proof of denial of due process in an administrative proceeding requires a showing of substantial prejudice. Jourdan v. Equitable Equip. Co., 889 F.2d 637, 640 (5th Cir. 1989). Here, the administrative proceeding was resolved in Chip’s favor, and his services were not reduced. Had there been a reduction, Chip could have raised his due process claims in his administrative appeal and received proper review. Because Chip has alleged no injury personal to him, his claim is without merit.
Accordingly, we affirm the judgment of the district court. We dispense with oral argument because the facts and legal
4

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contentions are adequately presented in the materials before this court and argument would not aid the decisional process.
AFFIRMED

5

 
 6:10-cv-00767-TMC Date Filed 07/28/17 Entry Number 346 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION

Peter B., Jimmy “Chip” E.,

)

and Michelle M.,

)

)

Plaintiffs,

)

)

v.

)

)

)

Beverly Buscemi, Kelly Floyd,

)

the South Carolina Department

)

of Health and Human Services,

)

the South Carolina Department

)

of Disabilities and Special

)

Needs, Anthony Keck, and

)

Richard Huntress,

)

)

Defendants.

)

________________________________ )

C/A No. 6:10–767-TMC ORDER

This matter is before the court on Plaintiff Jimmy “Chip” E.’s (Plaintiff”) motion for attorneys’ fees and guardian ad litem fees (ECF No. 333). Rather than address the merits of the motion unnecessarily, Defendants filed a motion to strike or dismiss Plaintiff’s motion on the ground that the motion for fees is untimely. (ECF No. 336).1 Plaintiff filed a response opposing Defendants’ motion to strike or dismiss (ECF No. 343), and Defendants filed a reply (ECF No. 345). Accordingly, the motion is now fully briefed and ready for a ruling.
I. Discussion Defendants contends that the motion for attorneys' fees is untimely under Federal Rule of Civil Procedure 54(d)(2)(B) because it was not filed within fourteen (14) days after entry of the judgment of the district court. Plaintiff argues that the motion is timely under Rule 54 and, if

1Defendants also filed a motion to stay the deadline for their response to the motion for attorney’s fees until the motion to strike or dismiss has been ruled on (ECF No. 337) - basically asking the court to rule on the timeliness of the motion before requiring the merits of the motion to be fully briefed. The court granted the motion. (ECF No. 338).

6:10-cv-00767-TMC Date Filed 07/28/17 Entry Number 346 Page 2 of 7
not, the court should find excusable neglect and extend the time for filing pursuant to Rule 6 of the Federal Rules of Civil Procedure.
Rule 54(d)(2)(B) states, “Unless a statute or court order provides otherwise, the motion [for attorney's fees] must be filed no later than 14 days after entry of judgment.” Fed.R.Civ.P. 54(d)(2)(B)(i). In this case, judgment was entered on December 10, 2014. (ECF No. 303). Plaintiff filed a timely appeal, and the Fourth Circuit Court of Appeals dismissed the appeal on April 29, 2016. (ECF Nos. 310, 327). The Fourth Circuit denied a motion for rehearing on September 7, 2016. (ECF No. 329). On December 6, 2016, Plaintiff filed a petition for a writ of certiorari in the United States Supreme Court, which was denied on April 17, 2017. (ECF Nos. 331, 332). Plaintiff filed this motion for attorneys’ fees on May 1, 2017. (ECF No. 333).
Plaintiff argues that Rule 54(d)’s reference to “judgment” is only to a final judgment and not an interlocutory judgment. The court agrees with this statement. However, then Plaintiff further argues that the judgment entered in December 2014 was not a final judgment. Plaintiff contends that cases often have many judgments and its motion is timely as it was filed on May 1, 2017, within fourteen days of the final order of the United States Supreme Court dismissing the case. (ECF No. 343 at 6).2 Specifically, Plaintiff argues that “the fourteen day deadline to file a motion for attorneys fees could not have run until, at the earliest, after the final order issued by the Supreme Court of the United States. Plaintiff filed the motion for fees within 14 days of that final order of the Supreme Court, perhaps prematurely, because this Court still has not filed a judgment.” (ECF No. 343 at 5).
Plaintiff is simply mistaken. The December 2014 order was undoubtably a final order, and under Rule 54 a motion for attorneys’ fees had to be filed within fourteen days of its entry.
2The court notes that Plaintiff in response to the motion to strike or dismiss refers to a disciplinary action and includes as exhibits related documents. The court does not see how this disciplinary proceeding or any argument regarding it is relevant to the issue of whether Plaintiff’s motion for attorneys’ fees is timely.
2

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Rule 54(a) defines the term “judgment” and states that a judgment “includes a decree and any
order from which an appeal lies.” Fed.R.Civ.P. 54(a). See also 10 C. Wright, A. Miller, and M.
Kane, Federal Practice and Procedure § 2651 (2d ed.1983) (stating that “judgment” means only
final judgments and appealable interlocutory orders). “Based on that definition alone, Rule 54
[arguably] could apply to a judgment from the Court of Appeals. After all, a judgment from the
Court of Appeals can be appealed to the United States Supreme Court.” Dippin' Dots, Inc. v.
Mosey, 602 F.Supp.2d 777, 782 (N.D.Tex. 2009). However, here Plaintiff is arguing that it is
the judgment from the United States Supreme Court that is controlling, and certainly as there is
no appeal from that judgment, the court finds his argument unavailing.
Moreover, the federal rules should be read in context with the Advisory Committee Notes.3 The Advisory Committee's Notes accompanying Rule 54 bolster the conclusion that it is
the district court’s final order which triggers the fourteen-day period. The Advisory Committee
Notes to Rule 54(b) indicate that one of the reasons for the deadline for filing a motion for
attorney’s fees “is to assure that the opposing party is informed of the claim before the time for
appeal has lapsed.” Fed.R.Civ.P. 54 Advisory Committee's Note, 1993 Amendments. Those
Notes also contain an explanation of how a district court should handle a request for costs and
fees under Rule 54(d)(2)(B):
If an appeal on the merits of the case is taken, the court may rule on the claim for fees, may defer its ruling on the motion, or may deny the motion without prejudice, directing under subdivision (d)(2)(B) a new period for filing after the appeal has been resolved. A notice of appeal does not extend the time for filing a fee claim based on the initial judgment, but the court under subdivision (d)(2)(B) may effectively extend the period by permitting claims to be filed after resolution of the appeal. A new period for filing will automatically begin if a new judgment is entered following a reversal or remand by the appellate court or the granting of a motion under Rule 59.
3The Advisory Committee's Notes on the federal rules are “of weight” in interpreting the meaning of the rules. See Torres v. Oakland Scavenger Co., 487 U.S. 312, 316 (1988) (explaining that the Advisory Committee's notes on Rule 3 “although not determinative,” were “of weight” in the Court's “construction of the rule”).
3

6:10-cv-00767-TMC Date Filed 07/28/17 Entry Number 346 Page 4 of 7
Fed.R.Civ.P. 54, Advisory Committee Notes, 1993 Amendments. Clearly, the Notes anticipate
the filing of a new “judgment” only following reversal or remand on appeal, and expressly
indicate that the entry of such a judgment triggers the running (for a second time) of the
fourteen-day time period set forth in Rule 54(d)(2)(B). There has been no reversal or remand in
this case by the appellate courts.4 In this case, the United States Supreme Court's denial of a writ
of certiorari has not resulted in such a judgment. As a result, that denial is not an appropriate
“entry of judgment” upon which to calculate the timeliness of Plaintiff’s motion for attorney’s
fees.
Moreover, the purpose of requiring a motion for attorney's fees to be filed no later than
14 days after entry of judgment is to “permit the court to resolve fee disputes while the services
that were performed [are] still . . . freshly in mind.” 10 Charles Alan Wright, et al., Federal
Practice and Procedure: Civil § 2680 (3d ed.1998). Additionally, “prompt filing may allow the
district court to make its fee ruling in time to allow appellate review at the same time as review
on the merits.” Id. 5 Finally, the court notes that the Federal Rules of Civil Procedure “'govern
4Plaintiff also argues that “while the preliminary injunction might have justified an award of interim fees, the most significant success occurred on October 27, 2016, while Plaintiff’s petition for certiorari was pending in the Supreme Court, when Defendants drastically increased Chip E.’s hours to nearly double those he would have received had this lawsuit not been filed.” (ECF No. 343 at 6). This later action happened without any judicially sanctioned judgment or decree and would not qualify as a catalyst to award attorney's fees. To rule otherwise would directly conflict with the United States Supreme Court's rejection of the catalyst theory: “a defendant's voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change to make that plaintiff a prevailing party.” Smyth, et al. v. Rivero, 282 F.3d 268, 275 (4th Cir. 2002)(citing Buckhannon Bd. & Care Home, Inc. v. Virginia Dep’t of Health & Human Res., 532 U.S. 598, 605 (2001)).
5As the Second Circuit has noted, “Congress’s reasons for its 1993 addition to Rule 54(d)(2)(B) (the fourteen-day deadline) were three-fold: (1) to provide notice of the fee motion to the non-movant before the time to appeal expires; (2) to encourage a prompt ruling on fees to facilitate a consolidated appeal on both the merits and the attorneys’ fee issue; and (3) to resolve fee disputes efficiently, ‘while the services performed are freshly in mind.’ ” Tancredi v. Metro. Life Ins. Co., 378 F.3d 220, 227 (2d Cir. 2004) (quoting Fed.R.Civ.P. 54 Advisory Committee's Notes (1993)).
4

6:10-cv-00767-TMC Date Filed 07/28/17 Entry Number 346 Page 5 of 7
the procedures in all civil actions and proceedings in the United States District Courts.” Fed. R. Civ. P. 1. Thus, Rule 54 can only refer to a judgment entered by the district court and not a judgment or mandate of the Fourth Circuit Court of Appeals or Supreme Court. Accordingly, Plaintiff’s motion is untimely.
Plaintiff also argues that if the court determines the motion is untimely, the court should find excusable neglect and extend the time for filing the motion pursuant to Rule 6(b)(1)(B). Rule 6 provides “[w]hen an act may or must be done within a specified time, the court may, for good cause, extend the time on motion made after the time has expired if the party failed to act because of excusable neglect.” Fed.R.Civ.P. 6(b)(1)(B).6
Plaintiff makes only a cursory argument regarding excusable neglect and does not state exactly what he contends would constitute excusable neglect in this action. Rather, Plaintiff merely argues that he is entitled to the application of excusable neglect pursuant to Rule 6 and that Defendants would not be prejudiced. The court disagrees.
“Inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute ‘excusable’ neglect. . . . .” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 392 (1993). Excusable neglect “is not easily demonstrated, nor was it intended to be.” Thompson v. E.I. DuPont de Nemours & Co., 76 F.3d 530, 534 (4th Cir. 1996). The court has recognized that “it is clear that ‘excusable neglect’ under Rule 6(b) is a somewhat ‘elastic concept’ and is not limited strictly to omissions caused by circumstances beyond the control of the movant.” Id. (citing Pioneer Inv. Servs. Co., 507 U.S. at 392). “Rather, it may encompass delays caused by inadvertence, mistake or carelessness, at least when the delay was not long,
6The court notes Plaintiff has not filed a motion for an extension under Rule 6 (b)(1)(B), as the rule requires, but rather merely argues for the application of excusable neglect in response to Defendants’ motion to dismiss. See Lujan v. Nat’l Wildlife Fed., 497 U.S. 871, 896 (1990) (stating that pursuant to Rule 6, “any post deadline extension must be ‘upon motion made’ ”).
5

6:10-cv-00767-TMC Date Filed 07/28/17 Entry Number 346 Page 6 of 7
there is no bad faith, there is no prejudice to the opposing party, and movant's excuse has some merit.” LoSacco v. City of Middletown, 71 F.3d 88, 93 (2d Cir.1995) (citing Pioneer Inv. Servs. Co., 507 U.S. at 395) (in context of bill of costs).
The Court in Pioneer explained that the determination of whether lawyer neglect can be deemed as “excusable” is “at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission,” including “the danger of prejudice to the [opposing party], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.” Pioneer Inv. Servs. Co., 507 U.S. at 395. The reason for the delay is the most important factor. Colony Apartments v. Abacus Project Mgmt., 197 Fed. Appx. 217, 223 (4th Cir. 2006). However, “[m]erely establishing these elements does not entitle a party to relief,” as the decision “ ‘whether to grant an enlargement of time still remains committed to the discretion of the district court.’ ” Id. (quoting Thompson, 76 F.3d at 532 n.2). Moreover, a lawyer's simple lack of knowledge of a deadline will not ordinarily constitute excusable neglect, Safety-Kleen, Inc. (Pinewood) v. Wyche, 274 F.3d 846, 867 (4th Cir. 2001), nor will a mistaken interpretation of a rule or statute, see United States ex rel. Shaw Env't, Inc. v. Gulf Ins. Co., 225 F.R.D. 526, 528-29 (E.D.Va. 2005) (citing Pioneer Inv. Servs. Co., 507 U.S. at 395), nor will a hectic law practice, see McLaughlin v. City of LaGrange, 662 F.2d 1385, 1387-88 (11th Cir. 1981).
As noted above, “ ‘excusable neglect’ is not easily demonstrated, nor was it intended to be.” Thompson, 76 F.3d at 534. And quoting from the Advisory Committee Notes to former Fed.R.Civ.P. 73, from which Fed. R.App. P. 4(a) was derived, the court advised that a district court should find excusable neglect “only in the ‘extraordinary cases where an injustice would otherwise result.’ ” Id. Here, the only apparent excusable neglect is a misinterpretation of the time limit set forth in Rule 54. However, the court finds Plaintiff has not demonstrated excusable
6

6:10-cv-00767-TMC Date Filed 07/28/17 Entry Number 346 Page 7 of 7
neglect based upon counsel’s misinterpretation of a rule. Pioneer Inv. Servs. Co., 507 U.S. at 395.
Moreover, the other factors weigh heavily against a finding of excusable neglect in this case. The delay in this case is extraordinarily lengthy. The court entered its final judgment of dismissal on December 10, 2014, and Plaintiff did not file this motion for attorney’s fee until May 1, 2017, almost two and a half years later. And, as Defendants argue, they would be greatly prejudiced by permitting a late filing because had they known Plaintiff would file a motion for attorney’s fees alleging Plaintiff was the prevailing party based on the granting of a preliminary injunction, Defendants might have appealed the granting of the preliminary injunction. Additionally, as Plaintiff recognizes, the 14-day deadline in Rule 54 “[is] to avoid prejudice to the opposing party if a fee application could be delayed beyond the 30 day period when the other side [has] to decide whether to file a notice of appeal.” (ECF No. 343 at 7 n.6). Based on the foregoing, Plaintiff has not shown excusable neglect to extend the deadline for filing a motion for attorney’s fees.
II. Conclusion Accordingly, based on the foregoing, the court GRANTS Defendants’ Motion to Dismiss (ECF No. 336) and DENIES Plaintiff’s Motion for Attorney’s Fees (ECF No. 333). IT IS SO ORDERED.

July 28, 2017 Anderson, South Carolina

s/Timothy M. Cain United States District Judge

7

 
 6:10-cv-00767-TMC Date Filed 06/19/18 Entry Number 355 Page 1 of 3

Appeal: 17-2012 Doc: 55

Filed: 06/19/2018 Pg: 1 of 3

UNPUBLISHED UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-2012
JIMMY CHIP E, Plaintiff - Appellant,
and PETER B; KAREN W.; MICHELLE M,
Plaintiffs, v. MARSHALL C. SANFORD; EMMA FORKNER; BEVERLY BUSCEMI; KELLY FLOYD; SOUTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, The; SOUTH CAROLINA DEPARTMENT OF DISABILITIES AND SPECIAL NEEDS, The; ANTHONY KECK; RICHARD HUNTRESS,
Defendants - Appellees, and NIKKI RANDHAWA HALEY,
Defendant.

Appeal from the United States District Court for the District of South Carolina, at Greensville. Timothy M. Cain, District Judge. (6:10-cv-00767-TMC)

Submitted: May 31, 2018

Decided: June 19, 2018

6:10-cv-00767-TMC Date Filed 06/19/18 Entry Number 355 Page 2 of 3

Appeal: 17-2012 Doc: 55

Filed: 06/19/2018 Pg: 2 of 3

Before MOTZ and KEENAN, Circuit Judges, and SHEDD, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Patricia Logan Harrison, Columbia, South Carolina, for Appellant. William H. Davidson, II, Kenneth P. Woodington, DAVIDSON, WREN & PLYLER, P.A., Columbia, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.

2

6:10-cv-00767-TMC Date Filed 06/19/18 Entry Number 355 Page 3 of 3

Appeal: 17-2012 Doc: 55

Filed: 06/19/2018 Pg: 3 of 3

PER CURIAM: Jimmy Chip E appeals the district court’s order denying his motion for costs and
attorney’s fees as untimely. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. E v. Sanford, No. 6:10-cv-00767-TMC (D.S.C. July 28, 2017). We deny E’s motion to supplement the record. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.
AFFIRMED

3

 
 Case: 6:10-cv-767 As of: 03/03/2020 10:54 AM EST 1 of 30

U.S. District Court District of South Carolina (Greenville) CIVIL DOCKET FOR CASE #: 6:10−cv−00767−TMC

CLOSED,LC 1

B et al v. Sanford et al Assigned to: Honorable Timothy M Cain Case in other court: Fourth Circuit, 13−01450
Fourth Circuit, 15−01039
4CCA, 17−02012 Cause: 42:12117 Americans with Disabilities Act
Plaintiff

Date Filed: 03/24/2010 Date Terminated: 12/10/2014 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

Peter B

represented by Kenneth C Anthony , Jr Anthony Law Firm PO Box 3565 Spartanburg, SC 29304 864−582−2355 Fax: 864−583−9772 Email: kanthony@anthonylaw.com ATTORNEY TO BE NOTICED

Patricia L Harrison Patricia Logan Harrison Law Office 611 Holly Street Columbia, SC 29205 8033605555 Fax: 803−256−2213 Email: pharrison@loganharrisonlaw.com ATTORNEY TO BE NOTICED

Sandra Kerr Ray PO Box 775 White Rock, SC 29177 803−603−7796 Email: crostch22@aol.com ATTORNEY TO BE NOTICED

Plaintiff
Karen W TERMINATED: 07/15/2010

represented by Kenneth C Anthony , Jr (See above for address) ATTORNEY TO BE NOTICED

Patricia L Harrison (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Jimmy Chip E TERMINATED: 03/07/2013

represented by Kenneth C Anthony , Jr (See above for address) ATTORNEY TO BE NOTICED

Patricia L Harrison (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Michelle M TERMINATED: 03/07/2013

represented by Kenneth C Anthony , Jr (See above for address) ATTORNEY TO BE NOTICED

Case: 6:10-cv-767 As of: 03/03/2020 10:54 AM EST 2 of 30

V. Defendant Marshall C Sanford TERMINATED: 06/13/2012
Defendant Emma Forkner TERMINATED: 05/25/2011
Defendant Beverly Buscemi

Patricia L Harrison (See above for address) ATTORNEY TO BE NOTICED
Sandra Kerr Ray (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth Paul Woodington Davidson Wren and Plyler PA 1611 Devonshire Drive Second Floor PO Box 8568 Columbia, SC 29204 803−806−8222 Fax: 803−806−8855 Email: kwoodington@dml−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
E Brandon Gaskins Moore and Van Allen PLLC (Chas) 78 Wentworth Street Charleston, SC 29401 843−579−7000 Fax: 843−579−8738 Email: gaskinsb@mvalaw.com TERMINATED: 05/12/2011
William Henry Davidson , II Davidson Wren and Plyler PA 1611 Devonshire Drive Second Floor PO Box 8568 Columbia, SC 29204 803−806−8222 Fax: 803−806−8855 Email: wdavidson@dml−law.com ATTORNEY TO BE NOTICED
represented by Kenneth Paul Woodington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Henry Davidson , II (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth Paul Woodington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Henry Davidson , II (See above for address) ATTORNEY TO BE NOTICED

Case: 6:10-cv-767 As of: 03/03/2020 10:54 AM EST 3 of 30

Defendant Kelly Floyd
Defendant South Carolina Department of Health and Human Services, The
Defendant South Carolina Department of Disabilities and Special Needs, The
Defendant Nikki Randhawa Haley TERMINATED: 06/13/2012
Defendant Anthony Keck
Defendant Richard Huntress

represented by Kenneth Paul Woodington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Henry Davidson , II (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth Paul Woodington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Henry Davidson , II (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth Paul Woodington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Henry Davidson , II (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth Paul Woodington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Henry Davidson , II (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth Paul Woodington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Henry Davidson , II (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth Paul Woodington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Henry Davidson , II (See above for address) ATTORNEY TO BE NOTICED

Case: 6:10-cv-767 As of: 03/03/2020 10:54 AM EST 4 of 30

V. Interested Party Carolyn Bearden Brown 5225 Clemson Avenue #128 Forest Acres Columbia, SC 29206 803−463−6989 Amicus Protection and Advocacy for People with Disabilities Inc
Amicus South Carolina Legal Services 2109 Bull Street P.O. Box 1445 Columbia, SC 29201 803−744−4181
Amicus South Carolina Chapter of the National Academy of Elder Law Attorneys Anderson M. Horne, Attorney and Counselor at Law, LLC 712 E. Washington St. P.O. Box 10128 Greenville, SC 29603 864−640−4089

represented by Sarah Garland St Onge Millender Elder Law 1441 Main Street Suite 725 Columbia, SC 29201 803−733−3433 Fax: 803−733−2990 Email: stonge@millenderelderlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anna Maria Darwin Protection and Advocacy for People with Disabilities 545 North Pleasantburg Drive Suite 106 Greenville, SC 29607 864−235−0273 Fax: 864−233−7962 Email: darwin@pandasc.org ATTORNEY TO BE NOTICED
represented by Kirby Mitchell South Carolina Legal Services (Gville) 701 S Main Street Greenville, SC 29601 864−679−3247 Email: kirbymitchell@sclegal.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Garland St Onge (See above for address) ATTORNEY TO BE NOTICED
represented by Philip J Corson Legacy Law Firm LLC 100 Stone Village Drive Suite 208 Fort Mill, SC 29708 803−746−7000 Fax: 803−753−8402 Email: philip@planningyourlegacy.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anderson McClain Horne Anderson Horne Law Office 712 East Washington Street Greenville, SC 29601

Case: 6:10-cv-767 As of: 03/03/2020 10:54 AM EST 5 of 30

864−640−4089 Email: anderson@hornelawsc.com ATTORNEY TO BE NOTICED
Sarah Garland St Onge (See above for address) ATTORNEY TO BE NOTICED

Date Filed 03/24/2010 03/24/2010 03/26/2010 04/09/2010
04/14/2010 04/15/2010
04/21/2010 04/29/2010

# Docket Text
1 COMPLAINT against Beverly Buscemi, Kelly Floyd, Emma Forkner, Marshall C Sanford, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The (Filing fee $350 receipt number 0420−2626981.), filed by Jimmy Chip E, Peter B, Karen W, Michelle M.(kmca) (Main Document 1 replaced on 3/26/2010) (kmca, ). (Entered: 03/25/2010)
4 Local Rule 26.01 Answers to Interrogatories by Peter B, Jimmy Chip E, Michelle M, Karen W.(kmca) (Entered: 03/26/2010)
5 Summons Issued as to Beverly Buscemi, Kelly Floyd, Emma Forkner, Marshall C Sanford, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The. (kmca) (Entered: 03/26/2010)
6 SUMMONS Returned Executed by Jimmy Chip E, Peter B, Karen W, Michelle M. Beverly Buscemi served on 4/1/2010, answer due 4/22/2010; Kelly Floyd served on 4/1/2010, answer due 4/22/2010; Emma Forkner served on 4/8/2010, answer due 4/29/2010; Marshall C Sanford served on 4/1/2010, answer due 4/22/2010; South Carolina Department of Disabilities and Special Needs, The served on 4/1/2010, answer due 4/22/2010; South Carolina Department of Health and Human Services, The served on 4/8/2010, answer due 4/29/2010. (Attachments: # 1 certified mailing green cards)(Harrison, Patricia) (Entered: 04/09/2010)
7 MOTION for Extension of Time to File Answer re 1 Complaint, 5 Summons Issued by Beverly Buscemi, Kelly Floyd, Emma Forkner, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The. Response to Motion due by 5/3/2010 No proposed orderMotions referred to Bruce Howe Hendricks.(Woodington, Kenneth) (Entered: 04/14/2010)
10 TEXT ORDER GRANTING 7 MOTION for Extension of Time to File Answer. Beverly Buscemi answer due 5/7/2010; Kelly Floyd answer due 5/7/2010; Emma Forkner answer due 5/7/2010; South Carolina Department of Disabilities and Special Needs, The, answer due 5/7/2010; South Carolina Department of Health and Human Services, The, answer due 5/7/2010. Signed by Magistrate Judge Bruce Howe Hendricks on 4/15/10. (kmca) (Entered: 04/15/2010)
11 First MOTION to Dismiss by Marshall C Sanford. Response to Motion due by 5/11/2010 (Attachments: # 1 Memo in Support)No proposed orderMotions referred to Bruce Howe Hendricks.(Gaskins, E) (Entered: 04/21/2010)
12 MOTION for Preliminary Injunction by Peter B, Jimmy Chip E, Michelle M. Response to Motion due by 5/17/2010 (Attachments: # 1 Memo in Support Memorandum in Support, # 2 Certificate of Service, # 3 Exhibit Declaration of Carolyn Brown, # 4 Exhibit Testimony of Jackie Walker, # 5 Exhibit Declaration of Tod Reel, # 6 Exhibit Affidavit of Barbara Morgan, # 7 Exhibit Affidavit/letter of Mel Patterson, MD, # 8 Exhibit LAC audit of SCDDSN, # 9 Exhibit White House Press release, # 10 Exhibit Thomas Perez re: Olmstead enforcement, # 11 Exhibit Affidavit of Jimmy "Chip" E., # 12 Exhibit List of Services, Year 5, # 13 Exhibit List of Services, Year 1, # 14 Exhibit Newspaper articles "Workability Center, # 15 Exhibit SC Appropriations Act, # 16 Exhibit Declaration of Lennie Mullis, # 17 Exhibit Budget and Control Minutes, # 18 Exhibit Newspaper article, arrest of Whitten Center Employee, # 19 Exhibit 1994 Whitten Center investigation, # 20 Exhibit SC Code 44−26−140, # 21 Exhibit Direct Care Alliance, # 22 Exhibit AARP, A Balancing Act, # 23 Exhibit Letter of David Goodell, # 24 Exhibit Letter of Beverly Buscemi, # 25 Exhibit SCDDSN Annual Acct. Report)No proposed orderMotions referred to Bruce Howe Hendricks.(Harrison, Patricia) (Entered: 04/29/2010)

Case: 6:10-cv-767 As of: 03/03/2020 10:54 AM EST 6 of 30

05/05/2010 05/05/2010 05/10/2010
05/11/2010 05/17/2010 05/17/2010
05/21/2010 05/26/2010
05/26/2010 06/07/2010 06/08/2010 06/08/2010 06/11/2010

13 ANSWER to 1 Complaint, by Beverly Buscemi, Kelly Floyd, Emma Forkner, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The.(Woodington, Kenneth) Modified on 5/26/2010: see 23 Answer to complaint (kmca). (Entered: 05/05/2010)
14 Local Rule 26.01 Answers to Interrogatories by Beverly Buscemi, Kelly Floyd, Emma Forkner, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The.(Woodington, Kenneth) (Entered: 05/05/2010)
15 SCHEDULING ORDER: Rule 26(f) Conference Deadline 6/1/2010, 26(a) Initial Disclosures due by 6/15/2010, Rule 26 Report due by 6/15/2010, Amended Pleadings due by 8/3/2010, Plaintiffs ID of Expert Witness due by 9/2/2010, Defendants ID of Expert Witnesses Due by 10/4/2010, Records Custodian Affidavit due by 10/4/2010, Discovery due by 12/1/2010, Motions due by 12/16/2010, Mediation Due by 2/14/2011, Rule 26(a)(3) Disclosures due by 3/1/2011, Motion in Limine due by 3/14/2011, Pretrial Briefs due by 3/28/2011, Jury Selection Deadline 4/4/2011. Signed by Honorable R Bryan Harwell on 5/10/10. (kmca) (Entered: 05/10/2010)
16 RESPONSE in Opposition re 11 First MOTION to Dismiss Response filed by Peter B, Jimmy Chip E, Michelle M.Reply to Response to Motion due by 5/21/2010 (Harrison, Patricia) (Entered: 05/11/2010)
18 RESPONSE in Opposition re 12 MOTION for Preliminary Injunction Response filed by Marshall C Sanford.Reply to Response to Motion due by 5/27/2010 (Gaskins, E) (Entered: 05/17/2010)
19 RESPONSE in Opposition re 12 MOTION for Preliminary Injunction Response filed by Beverly Buscemi, Kelly Floyd, Emma Forkner, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The.Reply to Response to Motion due by 5/27/2010 (Attachments: # 1 Exhibit 1, ALC decision, # 2 Exhibit 2, Forkner affidavit, # 3 Exhibit 3, Lacy affidavit, # 4 Exhibit 4, Roberts affidavit, # 5 Exhibit 5, Moore affidavit, # 6 Exhibit 6, Priest affidavit)(Woodington, Kenneth) Modified on 6/14/2010: see 28 Amended and Supplemental Response (kmca). Modified on 11/8/2010: see 70 Supplement (kmca). (Entered: 05/17/2010)
21 REPLY to Response to Motion re 11 First MOTION to Dismiss Response filed by Marshall C Sanford. (Gaskins, E) (Entered: 05/21/2010)
22 MOTION to Appoint Attorney/Guardian ad Litem by Peter B, Jimmy Chip E, Michelle M, Karen W. Response to Motion due by 6/14/2010 (Attachments: # 1 Certificate of Service, # 2 Petition for Guardian Ad Litem)Proposed order is being emailed to chambers with copy to opposing counsel.Motions referred to Bruce Howe Hendricks.(Harrison, Patricia) Modified on 5/27/2010: to remove duplicate text (kmca). Modified on 6/7/2010: see 24 Certificate of Consultation (kmca). (Entered: 05/26/2010)
23 ANSWER to 1 Complaint, (as re−filed after personal service of Complaint) by Beverly Buscemi, Kelly Floyd, Emma Forkner, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The.(Woodington, Kenneth) (Entered: 05/26/2010)
24 CERTIFICATE OF CONSULTATION byPeter B, Michelle M re 22 MOTION to Appoint Attorney/Guardian ad Litem ad Litem. (Harrison, Patricia) (Entered: 06/07/2010)
26 ORDER granting 22 Motion to Appoint Guardian ad Litem. Appointed Sandra Kerr Ray for Peter B, Sandra Kerr Ray for Michelle M. Signed by Magistrate Judge Bruce Howe Hendricks on 6/8/10.(kmca) (Entered: 06/08/2010)
***DOCUMENT MAILED 26 Order on Motion to Appoint Guardian ad Litem, with note asking Ms Ray to update her CM/ECF account to include her email address for future service, placed in U.S. Mail to Sandra Kerr Ray (kmca) (Entered: 06/08/2010)
28 Amended and Supplemental RESPONSE in Opposition re 12 MOTION for Preliminary Injunction, filed by Beverly Buscemi, Kelly Floyd, Emma Forkner, South Carolina Department of Disabilities and Special Needs, The, South Carolina

Case: 6:10-cv-767 As of: 03/03/2020 10:54 AM EST 7 of 30

06/15/2010 06/15/2010 06/15/2010 06/15/2010 06/17/2010 06/21/2010 06/22/2010 06/25/2010 06/25/2010
07/02/2010 07/07/2010

Department of Health and Human Services, The.Reply to Response to Motion due by 6/21/2010 (Attachments: # 1 Exhibit Amended and Supplemental Lacy Affidavit)(Woodington, Kenneth) Modified on 6/14/2010: to edit text (kmca). Modified on 11/8/2010: See 70 Supplement (kmca). (Entered: 06/11/2010)
29 Rule 26(f) Report by Beverly Buscemi, Kelly Floyd, Emma Forkner, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The. (Attachments: # 1 LR 26.03 Answers)(Woodington, Kenneth) (Entered: 06/15/2010)
30 Rule 26(f) Report by Marshall C Sanford.(Gaskins, E) (Main Document 30 replaced on 6/17/2010 with corrected document as provided by filing user) (kmca). (Entered: 06/15/2010)
31 Local Rule 26.03 Answers to Interrogatories by Marshall C Sanford.(Gaskins, E) (Main Document 31 replaced on 6/15/2010 with corrected document as provided by filing user) (kmca). (Entered: 06/15/2010)
36 Rule 26(f) Report by Peter B, Jimmy Chip E, Michelle M. (Attachments: # 1 LR 26.03 Answers)(Harrison, Patricia) (Main Document 36 replaced on 6/17/2010 to correct formatting as provided by filing user) (kmca). Modified on 6/17/2010: to correct filing date (kmca). (Entered: 06/17/2010)
37 DELETION OF DOCKET ENTRY NUMBER #32 Reply, Reason: incorrect main document, incorrect event. Corrected Filing Document Number 36 Rule 26(f) Report. Modified filing date to that of original filing: 6/15/10. (kmca) (Entered: 06/17/2010)
39 First MOTION for Extension of Time to File Response/Reply as to 28 Amended and Supplemental Response in Opposition to 12 Motion, by Peter B, Jimmy Chip E, Michelle M. Response to Motion due by 7/9/2010 No proposed order.Motions referred to Bruce Howe Hendricks.(Harrison, Patricia) Modified on 6/21/2010: to link to correct (amended and supplemental) link (kmca). (Entered: 06/21/2010)
41 TEXT ORDER granting 39 Motion for Extension of Time to File Response/Reply as to 28 Amended and Supplemental Response in Opposition to 12 MOTION for Preliminary Injunction. Reply due by 6/25/2010. Signed by Magistrate Judge Bruce Howe Hendricks on 6/22/10.(kmca) (Entered: 06/22/2010)
43 MOTION to Dismiss Karen W. as Plaintiff by Peter B, Jimmy Chip E, Michelle M, Karen W. Response to Motion due by 7/12/2010 No proposed order.Motions referred to Bruce Howe Hendricks.(Harrison, Patricia) Modified on 6/25/2010: to remove duplicate text (kmca). (Entered: 06/25/2010)
44 REPLY to Response to Motion re 12 MOTION for Preliminary Injunction Response filed by Peter B, Jimmy Chip E, Michelle M. (Attachments: # 1 Attachment 1, Affidavit of Chip E., # 2 Attachment 2, Dr. Barnard, # 3 Attachment 3, Amber Pliai, # 4 Attanchment 4Affidavit of B. Morgan, # 5 Attachment 5,Declaration of C. Brown, # 6 Attachment 6, Wall Str. Journal, # 7 Attachment 7, Hadded v. Arnold, # 8 Attachment 8, Wall Street, Chip E., # 9 Attachment 9, MRRD Waiver Cuts, # 10 Attachment 10, Audit of MRRD Waiver, # 11 Attachment 11, Accountability Report, # 12 Attachment 12, Chip E. Timesheets, # 13 Atachment 13, MCAC Report)(Harrison, Patricia) (Main Document 44, Attachment 3, 5, 6, 8, and 9 replaced on 6/29/2010 to replace with corrected documents as provided by filing user) NOTE: MAIN DOCUMENT UPDATED TO CORRECT TYPO ON PG 9, 12 AND 18 (kmca). (Entered: 06/26/2010)
47 SUR REPLY to REPLY to Response to Motion re 12 MOTION for Preliminary Injunction Response filed by Beverly Buscemi, Kelly Floyd, Emma Forkner, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The. (Woodington, Kenneth) (Entered: 07/02/2010)
48 RESPONSE to Motion re 43 MOTION to Dismiss Motion to Dismiss Karen W. as Plaintiff Response filed by Beverly Buscemi, Kelly Floyd, Emma Forkner, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The.Reply to Response to Motion due by 7/19/2010 (Woodington, Kenneth) (Entered: 07/07/2010)

Case: 6:10-cv-767 As of: 03/03/2020 10:54 AM EST 8 of 30

07/15/2010 08/03/2010
08/19/2010 08/19/2010 08/23/2010 08/26/2010
08/26/2010 08/30/2010 08/30/2010 08/30/2010
08/31/2010 09/02/2010 09/22/2010

50 TEXT ORDER granting 43 Motion to Dismiss Karen W. as Plaintiff, as all other parties have either consented or filed no response. Signed by Honorable R Bryan Harwell on 7/15/2010.(mwel, ) (Entered: 07/15/2010)
51 MOTION to Amend/Correct Complaint by Peter B, Jimmy Chip E, Michelle M. Response to Motion due by 8/20/2010 (Attachments: # 1 Proposed amended complaint)Proposed order is being emailed to chambers with copy to opposing counsel.Motions referred to Bruce Howe Hendricks.(Harrison, Patricia) (Main Document 51 replaced on 8/5/2010 with correct document as provided by filing user)(Additional attachment added on 8/5/2010: # 2 Addendum to Motion (at request of chambers) (kmca). (Entered: 08/03/2010)
53 RESPONSE in Opposition re 51 MOTION to Amend/Correct Motion to Amend Complaint and Proposed Order Response filed by Beverly Buscemi, Kelly Floyd, Emma Forkner, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The.Reply to Response to Motion due by 8/30/2010 (Woodington, Kenneth) (Entered: 08/19/2010)
54 RESPONSE in Opposition re 51 MOTION to Amend/Correct Motion to Amend Complaint and Proposed Order Response filed by Marshall C Sanford.Reply to Response to Motion due by 8/30/2010 (Gaskins, E) (Entered: 08/19/2010)
56 Case Reassigned to Judge Honorable J Michelle Childs. Judge Honorable R Bryan Harwell no longer assigned to the case. (glev, ) (Entered: 08/23/2010)
57 NOTICE of Hearing on Motion: Motion Hearing set for 9/13/2010, 02:00 PM in Greenville #1, Clement F Haynsworth Fed Bldg, 300 E Washington St, Greenville before Magistrate Judge Bruce Howe Hendricks. NOTE: While the parties should be prepared to discuss issues related to all outstanding motions, particular attention should be paid to the 12 MOTION for Preliminary Injunction and the related requirements of irreparable harm and ripeness.(kmca) (Entered: 08/26/2010)
58 MOTION to Continue by Beverly Buscemi, Kelly Floyd, Emma Forkner, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The. Response to Motion due by 9/13/2010 No proposed orderMotions referred to Bruce Howe Hendricks.(Woodington, Kenneth) (Entered: 08/26/2010)
60 TEXT ORDER granting 58 Motion to Continue. Signed by Magistrate Judge Bruce Howe Hendricks on 8/30/10.(kmca) (Entered: 08/30/2010)
61 NOTICE of Cancellation of Hearing: Motion Hearing set for 9/13/2010, 02:00 PM in Greenville #1. (kmca) (Entered: 08/30/2010)
62 NOTICE OF RESCHEDULED HEARING: Motion Hearing set for 9/13/2010, 02:00 PM in Greenville #1, CANCELED and rescheduled to: Motion Hearing set for 9/28/2010 10:00 AM in Greenville #1, Clement F Haynsworth Fed Bldg, 300 E Washington St, Greenville before Magistrate Judge Bruce Howe Hendricks. NOTE: While the parties should be prepared to discuss issues related to all outstanding motions, particular attention should be paid to the 12 MOTION for Preliminary Injunction and the related requirements of irreparable harm and ripeness.(kmca) (Entered: 08/30/2010)
63 MOTION for Extension of Time and Stay of Scheduling Order by Peter B, Jimmy Chip E, Michelle M. Response to Motion due by 9/17/2010 No proposed orderMotions referred to Bruce Howe Hendricks.(Harrison, Patricia) (Entered: 08/31/2010)
65 TEXT ORDER granting 63 Motion for Extension of Time and Stay of Scheduling Order. The parties will submit an Amended Scheduling Order after the Hearing on September 28, 2010. Signed by Magistrate Judge Bruce Howe Hendricks on 9/2/10.(kmca) (Entered: 09/02/2010)
66 Amicus Curiae APPEARANCE entered by Sarah Garland St Onge on behalf of Protection and Advocacy for People with Disabilities, Inc., South Carolina Legal Services, South Carolina Chapter of the National Academy of Elder Law Attorneys. (St Onge, Sarah) (Entered: 09/22/2010)

Case: 6:10-cv-767 As of: 03/03/2020 10:54 AM EST 9 of 30

09/28/2010 09/28/2010 11/08/2010 11/24/2010 12/02/2010 12/06/2010 12/13/2010 12/14/2010 12/16/2010 12/16/2010

68 Minute Entry. Proceedings held before Magistrate Judge Bruce Howe Hendricks: Motion Hearing held on 9/28/2010 re 12 MOTION for Preliminary Injunction filed by Michelle M, Jimmy Chip E, Peter B, 11 First MOTION to Dismiss filed by Marshall C Sanford, 51 MOTION to Amend/Correct filed by Michelle M, Jimmy Chip E, Peter B. After oral arguments motions 12 and 51 are taken under advisement. Court Reporter Karen E Martin. (kric, ) Modified on 9/28/2010 to edit docket text (kric, ). (Entered: 09/28/2010)
69 ORAL ORDER taking under advisement 51 Motion to Amend/Correct; taking under advisement 12 Motion for Preliminary Injunction; Written order forthcoming. Signed by Magistrate Judge Bruce Howe Hendricks on 9/28/2010.(kric, ) (Entered: 09/28/2010)
70 SUPPLEMENT by Beverly Buscemi, Kelly Floyd, Emma Forkner, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The to 28 Response in Opposition to Motion, 19 Response in Opposition to Motion,,. (Attachments: # 1 Exhibit 1, ALC order denying supersedeas, # 2 Exhibit 2, Ct. App. order denying supersedeas, # 3 Exhibit ALC supersedeas petition)(Woodington, Kenneth) (Entered: 11/08/2010)
71 REPORT AND RECOMMENDATIONS that the plaintiffs' Motion for Injunctive Relief [Doc. 12] be GRANTED and the defendants be ordered to maintain and/or return services in the quality, kind, and volume enjoyed by the plaintiffs prior to January 1, 2010, and, in the case of Peter B., prior to July 2009. Objections to R&R due by 12/13/2010. Signed by Magistrate Judge Bruce Howe Hendricks on 11/24/10. (kmca) (Entered: 11/24/2010)
72 ORDER granting in part and denying in part plaintiffs' 51 Motion to Amend/Correct Complaint. Specifically, the plaintiffs have leave to file the entirety of their proposed Amended Complaint [Doc. 51−1], except for those averments related to the American Recovery and Reinvestment Act and the presence 42 U.S.C. § 1985 in the title of Count Five. Signed by Magistrate Judge Bruce Howe Hendricks on 12/2/10.(kmca) (Entered: 12/02/2010)
73 REPORT AND RECOMMENDATIONS that defendant Sanford's 11 First MOTION to Dismiss be GRANTED as to all causes of action in the plaintiffs' original 1 Complaint. Notwithstanding, the defendant should not be dismissed from the case insofar as additional averments against him, related to newly added Medicaid Act and 42 U.S.C. § 1983 claims, have not been implicated, and, therefore, are not addressed, by the present motion. Objections to R&R due by 12/23/2010. Signed by Magistrate Judge Bruce Howe Hendricks on 12/6/10. (kmca) (Entered: 12/06/2010)
74 OBJECTION to 71 Report and Recommendations by Beverly Buscemi, Kelly Floyd, Emma Forkner, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The. (Attachments: # 1 Exhibit 1, Buscemi affidavit with attachments, # 2 Exhibit Whorton statement)(Woodington, Kenneth) (Main Document 74, Attachment 1 and Attachment 2 replaced on 12/14/2010 to correct Judge's initials) (kmca). (Entered: 12/13/2010)
76 MOTION for Extension of Time to File Answer (unopposed) by Beverly Buscemi, Kelly Floyd, Emma Forkner, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The. Response to Motion due by 1/4/2011 No proposed orderMotions referred to Bruce Howe Hendricks.(Woodington, Kenneth) (Entered: 12/14/2010)
79 TEXT ORDER Granting defendants' 76 MOTION for Extension of Time to File Answer (unopposed) to Amended Complaint when filed. (Defendants' Answer to Amended Complaint due 14 days after Amended Complaint is filed). Signed by Magistrate Judge Bruce Howe Hendricks on 12/16/10. (kmca) (Entered: 12/16/2010)
80 MOTION to Withdraw 72 Order on Motion to Amend/Correct, by Peter B, Jimmy Chip E, Michelle M. Response to Motion due by 1/7/2011 (Attachments: # 1 Exhibit 1, Order of the US Court of Appeals for the Ninth Circuit, Gray Panthers of San Francisco v. Arnold Schwarzenegger, Governor of the State of California, et. al., dated January 11, 2010, # 2 Exhibit 2, Letter from SC Governor Marshall C. Sanford to Peter Orszag, Director of the US Office of Management and Budget dated April 3, 2009, # 3 Exhibit 3, CMS Bulletin: American Recovery and Reinvestment Act of 2009,

Case: 6:10-cv-767 As of: 03/03/2020 10:54 AM EST 10 of 30

12/20/2010 12/21/2010 12/22/2010 01/05/2011 01/12/2011
01/12/2011 01/31/2011
02/01/2011

Frequently asked Questions from States dated July 7, 2009)Proposed order is being emailed to chambers with copy to opposing counsel.Motions referred to Bruce Howe Hendricks.(Harrison, Patricia) (Main Document 80 replaced on 12/17/2010: to replace incorrect document (header, caption and case number) with corrected document as provided by filing user) (kmca). Modified on 12/17/2010: to add descriptions to exhibits (kmca). (Entered: 12/16/2010)
82 RESPONSE in Opposition re 80 MOTION to Withdraw 72 Order on Motion to Amend/Correct. Response filed by Beverly Buscemi, Kelly Floyd, Emma Forkner, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The.Reply to Response to Motion due by 1/4/2011 (Woodington, Kenneth) Modified on 12/21/2010: to remove duplicate text (kmca). (Entered: 12/20/2010)
84 MOTION for Extension of Time to File Response/Reply as to 74 Objection to Report and Recommendations, Unopposed Motion to Extend Time for Plaintiffs to Reply to Defendants' Objections to Report and Recommendation of Magistrate Judge by Peter B, Jimmy Chip E, Michelle M. Response to Motion due by 1/7/2011 No proposed order.(Harrison, Patricia) Modified on 12/22/2010: to remove automatic referral to Magistrate Judge Hendricks (kmca). (Entered: 12/21/2010)
86 TEXT ORDER granting 84 Unopposed Motion for Extension of Time to File Response/Reply as to 74 Objection to 71 REPORT AND RECOMMENDATIONS. Replies due by 1/5/2011. Signed by Honorable J Michelle Childs on 12/22/10.(kmca) (Entered: 12/22/2010)
87 REPLY by Peter B, Jimmy Chip E, Michelle Mto 74 Objection to Report and Recommendations,. (Attachments: # 1 Exhibit Comptroller General of SC News Release dated August 20, 2010)(Harrison, Patricia) (Entered: 01/05/2011)
89 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 9/28/10, before Judge Bruce H. Hendricks. Court Reporter Karen E. Martin, Telephone number 864−201−8411, email Karen_E_Martin@scd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER. Parties have 7 calendar days from the filing of the transcript to file with the court a Notice of Intent to Request Redaction. Redaction Request due 2/2/2011. Redacted Transcript Deadline set for 2/14/2011. Release of Transcript Restriction set for 4/12/2011. (kmartin) (Entered: 01/12/2011)
90 REPLY by Beverly Buscemi, Kelly Floyd, Emma Forkner, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, Theto 87 Reply(Do not use this event to reply to a Motion), 74 Objection to Report and Recommendations,. (Woodington, Kenneth) (Entered: 01/12/2011)
92 TEXT ORDER denying 80 Motion to Withdraw 72 Order on Motion to Amend/Correct Complaint. This matter is before the Court on the motion of the plaintiffs to withdraw and for clarification. [Doc. 80.] With all due respect to some of the nuance raised in the plaintiffs' brief, the Court would decline to modify its Order. Whether by a denial to amend or a request to withdraw, the result is largely the same −− that the proposed American Recovery and Reinvestment Act claim will not proceed. The Court is not unaware of strategic differences between the two, in this and other cases. That being said, to the Court, the matter has been resolved in keeping with the procedural development in this case and adequately considers the claims as proposed. Moreover, the Court would not make any ruling regarding the effect of its amendment ruling on discovery in this case, going forward. That issue is not before the Court; there is no discovery dispute at hand. Signed by Magistrate Judge Bruce Howe Hendricks on 1/31/11.(kmca) (Entered: 01/31/2011)
93 ORDER ADOPTING REPORT AND RECOMMENDATIONS for 73 Report and Recommendations. It is therefore ORDERED that Defendant's 11 First Motion to Dismiss filed by Marshall C Sanford, is GRANTED as to all causes of action in Plaintiffs' original 1 Complaint. Defendant is not dismissed from the case insofar as additional averments against him, related to newly added Medicaid Act and 42U.S.C. § 1983 claims, have not been implicated, and,

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02/07/2011 03/07/2011
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therefore, are not addressed, by the present motion. Signed by Honorable J Michelle Childs on 2/1/11. (kmca) (Entered: 02/01/2011)
94 Case Reassigned to Judge Magistrate Judge Jacquelyn D Austin. Judge Magistrate Judge Bruce Howe Hendricks no longer assigned to the case. **Case number changed to 6−10−cv−767−JMC−JDA. Please make a note of it for future filings. (kmca) (Entered: 02/07/2011)
95 ORDER ADOPTING 71 REPORT AND RECOMMENDATIONS and GRANTING Plaintiffs' 12 Motion for Preliminary Injunction, filed by Michelle M, Jimmy Chip E, and Peter B. Defendants shall maintain and/or return services in the quality, kind, and volume enjoyed by Plaintiffs prior to January 1, 2010, and, in the case of Peter B., prior to July 2009. Signed by Honorable J Michelle Childs on 3/7/11. (kmca) (Entered: 03/07/2011)
97 MOTION to Amend/Correct 1 Complaint, by Peter B, Jimmy Chip E, Michelle M. Response to Motion due by 5/5/2011 (Attachments: # 1 Main Document Amended Complaint)Proposed order is being emailed to chambers with copy to opposing counselMotions referred to Jacquelyn D Austin.(Harrison, Patricia) (Entered: 04/18/2011)
99 MOTION to Substitute Attorney (in form of proposed Consent Order) by Marshall C Sanford. Response to Motion due by 5/23/2011 (Attachments: # 1 Exhibit 1, Letter from K. Woodington to Court)No proposed order.Motions referred to Jacquelyn D Austin.(Woodington, Kenneth) (Additional attachment added on 5/6/2011: # 2 Certificate of Service Pursuant to LR 83.I.07 as provided by filing user) (kmca). (Entered: 05/04/2011)
100 RESPONSE in Opposition re 97 MOTION to Amend/Correct 1 Complaint, MOTION to Amend/Correct 1 Complaint, (partially opposing) Response filed by Beverly Buscemi, Kelly Floyd, Emma Forkner, Marshall C Sanford, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The.Reply to Response to Motion due by 5/16/2011 (Woodington, Kenneth) (Entered: 05/04/2011)
103 TEXT ORDER granting 99 Consent Motion to Substitute Attorney for Defendant Marshall C Sanford. Kenneth Woodington substituted for E Brandon Gaskins. Signed by Magistrate Judge Jacquelyn D Austin on 5/12/11.(kmca) (Entered: 05/12/2011)
105 REPLY to Response to Motion re 97 MOTION to Amend/Correct 1 Complaint, MOTION to Amend/Correct 1 Complaint, Response filed by Peter B, Jimmy Chip E, Michelle M. (Harrison, Patricia) (Entered: 05/16/2011)
106 ORDER granting Plaintiffs' 97 Motion to Amend/Correct 1 complaint. Plaintiffs have leave to file the proposed Amended Complaint as revised consistent with this Order. Plaintiff shall file the Amended Complaint within seven (7) days of this Order. Signed by Magistrate Judge Jacquelyn D Austin on 5/20/11.(kmca) (Entered: 05/20/2011)
108 AMENDED COMPLAINT Amended Complaint to include Nikki Randhawa Haley, Anthony Keck,Richard Huntress against Beverly Buscemi, Kelly Floyd, Marshall C Sanford, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The, filed by Jimmy Chip E, Peter B, Michelle M. (Harrison, Patricia) (Entered: 05/25/2011)
110 ANSWER to 108 Amended Complaint, by Beverly Buscemi, Kelly Floyd, Richard Huntress, Anthony Keck, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The.(Woodington, Kenneth) (Entered: 06/03/2011)
111 ANSWER to 108 Amended Complaint, by Marshall C Sanford.(Woodington, Kenneth) (Entered: 06/03/2011)
112 ANSWER to 108 Amended Complaint, by Nikki Randhawa Haley.(Woodington, Kenneth) (Entered: 06/03/2011)

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06/13/2011
06/15/2011 06/17/2011 06/17/2011 06/30/2011
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07/18/2011 07/19/2011

114 MOTION to Compel, MOTION for Sanctions (Response to Motion due by 6/30/2011) by Peter B, Jimmy Chip E, Michelle M. (Attachments: # 1 Memo in Support, # 2 Exhibit 1 Excerpt from Service Coordinator Manual re; support plan, # 3 Exhibit 2 Letter dated November 9, 2010 transmitting plan of care, # 4 Exhibit 3 Plan of Care approved by doctor, psychologist and service provider dated Nov. 2010, pages 1−56, # 5 Exhibit 3 cont. Plan of care approved by doctor, psychologist and service provider dated Nov., 2010 pages 56−125, # 6 Exhibit 4 Charles Lea Center Plan of Care, # 7 Exhibit 5 List of providers contacted by Peter's guardian)No proposed order.Motions referred to Jacquelyn D Austin.(Harrison, Patricia) Modified on 6/14/2011: to add exhibit numbers (kmca). (Attachment 3, 4, 5 and 6 replaced on 6/16/2011 for redaction purposes as provided by filing user) (kmca). (Entered: 06/13/2011)
115 CERTIFICATE OF CONSULTATION byPeter B, Jimmy Chip E, Michelle M re 114 MOTION to Compel MOTION for Sanctions. (Harrison, Patricia) (Entered: 06/15/2011)
117 AMENDED ANSWER to 108 Amended Complaint, by Marshall C Sanford. (Woodington, Kenneth) (Entered: 06/17/2011)
118 AMENDED ANSWER to 108 Amended Complaint, by Nikki Randhawa Haley. (Woodington, Kenneth) (Entered: 06/17/2011)
120 RESPONSE in Opposition re 114 MOTION to Compel MOTION for Sanctions Response filed by Beverly Buscemi, Kelly Floyd, Nikki Randhawa Haley, Richard Huntress, Anthony Keck, Marshall C Sanford, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The.Reply to Response to Motion due by 7/11/2011 (Attachments: # 1 Buscemi Affidavit, # 2 Exhibit 1 to Buscemi Affidavit, Waiver Manual excerpt, # 3 Exhibit 2, to Buscemi Affidavit, RFP document, # 4 Moore Affidavit, # 5 Exhibit 1, to Moore Affidavit, Single Plan excerpts, # 6 Exhibit 2 to Moore Affidavit, Calendar showing activities)(Woodington, Kenneth) Modified on 7/1/2011: to remove duplicative text (kmca). (Entered: 06/30/2011)
121 Second MOTION to Amend/Correct Complaint by Peter B, Jimmy Chip E, Michelle M. Response to Motion due by 7/18/2011 (Attachments: # 1 proposed amended complaint)No proposed orderMotions referred to Jacquelyn D Austin.(Harrison, Patricia) (Entered: 06/30/2011)
123 REPLY to Response to Motion re 114 MOTION to Compel MOTION for Sanctions Response filed by Peter B, Jimmy Chip E, Michelle M. (Attachments: # 1 List of Exhibits and Exhibit 1, Testimony from SC DHHS "Fair Hearing", B. v. SC DHHS, # 2 Exhibit 2, Affidavit of Carolyn B., # 3 Exhibit 3, Order of Barry Streeter, # 4 Exhibit 4, B. v. SC DHHS,SC Court of Appeals, Order, # 5 Exhibit 5, Affidavit of Lennie Mullis, # 6 Exhibit 6, Calendar, # 7 Exhibit 7, Excerpts from MRRD Waiver Application, # 8 Exhibit 8, SC DHHS Qualified Provider List, # 9 Exhibit 9, Letter to Patricia Harrison from Ken Woodington, # 10 Exhibit 10, Report of Dr. Deil, # 11 Exhibit 11, Training records of Charles Lea Center)(Harrison, Patricia) Modified on 7/12/2011: to correct typo (kmca). (Attachment 1 and 4 replaced on 7/18/2011 to redact plaintiff's name; Attachment 3 replaced on 7/18/2011 to replace illegible attachment, as provided by filing user) (kmca). (Entered: 07/11/2011)
124 RESPONSE in Opposition re 121 Second MOTION to Amend/Correct Complaint Response filed by Beverly Buscemi, Kelly Floyd, Nikki Randhawa Haley, Richard Huntress, Anthony Keck, Marshall C Sanford, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The.Reply to Response to Motion due by 7/28/2011 (Woodington, Kenneth) (Entered: 07/18/2011)
125 MOTION to Strike 123 Reply to Response to Motion, by Beverly Buscemi, Kelly Floyd, Nikki Randhawa Haley, Richard Huntress, Anthony Keck, Marshall C Sanford, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The. Response to Motion due by 8/5/2011 No proposed order.Motions referred to Jacquelyn D Austin.(Woodington, Kenneth) Modified on 7/21/2011: see 128 Consultation Certificate (kmca). (Entered: 07/19/2011)

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07/21/2011 07/28/2011 07/28/2011 07/29/2011
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07/29/2011 08/02/2011 08/02/2011 08/02/2011 08/05/2011

128 CERTIFICATE OF CONSULTATION by Beverly Buscemi, Kelly Floyd, Nikki Randhawa Haley, Richard Huntress, Anthony Keck, Marshall C Sanford, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The re 125 MOTION to Strike 123 Reply to Response to Motion. (Woodington, Kenneth) Modified on 7/21/2011: to remove duplicative text (kmca). (Entered: 07/21/2011)
129 REPLY to Response to Motion re 121 Second MOTION to Amend/Correct Complaint. Reply filed by Peter B, Jimmy Chip E, Michelle M. (Attachments: # 1 Exhibit 1, Barbara Hickey v.SCHHS, Order dated July 19, 2011)(Harrison, Patricia) Modified on 7/29/2011: to remove duplicative text (kmca). (Entered: 07/28/2011)
130 MOTION for Extension of Time to Extend Date for Identifying Experts by Peter B, Jimmy Chip E, Michelle M. Response to Motion due by 8/15/2011 No proposed orderMotions referred to Jacquelyn D Austin.(Harrison, Patricia) (Entered: 07/28/2011)
131 TEXT ORDER: Plaintiffs' 121 Second Motion to Amend to add an additional Plaintiff on grounds that the new Plaintiff has similar allegations against the Defendants is DENIED. This case was filed on 3/24/2010 and recently amended on 5/25/2011. This court has granted the Plaintiffs opportunity to make substantial amendments to its original complaint (going from 44 to over 320 paragraphs). While Rule 15(a)(2) provides that a party may, at anytime, amend its complaint by leave of court, and that leave should be freely given when justice so requires, this generous standard is tempered by the necessary power of a district court to manage a case. At this point, the court finds that allowing the proposed amendment in this action would be prejudicial to Defendants. The fact−specific nature of the allegations against Defendants weighs against the addition of a new Plaintiff with different fact−specific claims. It does not appear that Plaintiffs' counsel is foreclosed from filing a separate action on the part of this new plaintiff. Signed by Magistrate Judge Jacquelyn D Austin on 7/28/11.(kmca) (Entered: 07/29/2011)
132 TEXT ORDER denying 114 Motion to Compel; denying 114 Motion for Sanctions. Upon review of the the pleadings and affidavits accompanying this motion and Defendants' response, the Court does not find that Defendants have violated the March 7, 2011 order of this Court. Therefore sanctions for contempt are not appropriate. Further, Plaintiffs' request that the Court order the State to hire a care giver who is not a qualified contractor of services under its procurement guidelines is denied. This court finds that it has no such authority unless the policy or procedure to qualify such contractor services is found to be unconstitutional. Signed by Magistrate Judge Jacquelyn D Austin on 7/28/11.(kmca) (Entered: 07/29/2011)
133 TEXT ORDER: The Parties are directed to submit, to chambers, an agreed upon joint proposed amended scheduling order within 5 days of this text order. Signed by Magistrate Judge Jacquelyn D Austin on 7/28/11. (kmca) (Entered: 07/29/2011)
134 CONSENT AMENDED SCHEDULING ORDER: 26(a) Initial Disclosures due by 8/29/2011, Plaintiffs ID of Expert Witness due by 9/30/2011, Defendants ID of Expert Witnesses Due by 10/31/2011, Records Custodian Affidavit due by 11/15/2011, Discovery due by 3/30/2012, Motions due by 4/20/2012, Rule 26(a)(3) Disclosures due by 5/15/2012, Jury Selection Deadline 7/16/2012. Signed by Honorable J Michelle Childs on 8/2/11. (kmca) (Entered: 08/02/2011)
135 MEDIATION ORDER: Mediation Due by 4/10/2012. Signed by Honorable J Michelle Childs on 8/2/11. (kmca) (Entered: 08/02/2011)
136 TEXT ORDER granting 130 Motion for Extension of Time. See 134 Consent Amended Scheduling Order for deadlines. Signed by Magistrate Judge Jacquelyn D Austin on 8/2/11.(kmca) (Entered: 08/02/2011)
137 RESPONSE in Opposition re 125 MOTION to Strike 123 Reply to Response to Motion. Response filed by Peter B, Jimmy Chip E, Michelle M. Reply to Response to Motion due by 8/15/2011 (Attachments: # 1 Exhibit 1, Affidavit of Carolyn B., # 2 Exhibit 2, Affidavit of Lennie Mullis)(Harrison, Patricia) Modified on 8/8/2011: to remove duplicative text (kmca). (Entered: 08/05/2011)

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08/08/2011
08/09/2011 08/10/2011
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08/18/2011 08/25/2011 09/06/2011 10/12/2011 10/12/2011 10/12/2011
10/18/2011 10/26/2011 10/27/2011

139 MOTION for Reconsideration/to Alter or Amend 132 Order on Motion to Compel, Order on Motion for Sanctions, by Peter B. Response to Motion due by 8/25/2011 (Attachments: # 1 Exhibit 1, B__v. SC Dept. HHS, SC Court of Appeals order dated April 20, 2011, # 2 Exhibit 2, Statement of DOJ on Enforcement of the ADA)Proposed order is being emailed to chambers with copy to opposing counsel.Motions referred to Jacquelyn D Austin.(Harrison, Patricia) Modified on 8/9/2011: to correct motion relief (kmca). (Entered: 08/08/2011)
140 CERTIFICATE OF CONSULTATION byPeter B re 139 MOTION for Reconsideration. (Harrison, Patricia) (Entered: 08/09/2011)
141 MOTION to Quash or for Protective Order by Beverly Buscemi, Kelly Floyd, Nikki Randhawa Haley, Richard Huntress, Anthony Keck, Marshall C Sanford, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The. Response to Motion due by 8/29/2011 (Attachments: # 1 Exhibit Subpoena)No proposed orderMotions referred to Jacquelyn D Austin.(Woodington, Kenneth) (Entered: 08/10/2011)
142 REPLY to Response to Motion re 125 MOTION to Strike 123 Reply to Response to Motion,,, MOTION to Strike 123 Reply to Response to Motion,,, Response filed by Beverly Buscemi, Kelly Floyd, Nikki Randhawa Haley, Richard Huntress, Anthony Keck, Marshall C Sanford, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The. (Woodington, Kenneth) (Entered: 08/15/2011)
144 NOTICE to counsel: Magistrate Judge Austin is no longer assigned to this case. Please use the case number 6:10−767−JMC for all future filings. (awil) (Entered: 08/18/2011)
145 RESPONSE in Opposition re 139 MOTION for Reconsideration Response filed by Beverly Buscemi, Kelly Floyd, Nikki Randhawa Haley, Richard Huntress, Anthony Keck, Marshall C Sanford, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The.Reply to Response to Motion due by 9/6/2011 (Woodington, Kenneth) (Entered: 08/25/2011)
146 REPLY to Response to Motion re 139 MOTION for Reconsideration Response filed by Peter B, Jimmy Chip E, Michelle M. (Harrison, Patricia) (Entered: 09/06/2011)
147 TEXT ORDER REFERRING MOTION: 139 MOTION for Reconsideration filed by Peter B. Signed by Honorable J Michelle Childs on 10/12/11. Motions referred to Jacquelyn D Austin.(awil) (Entered: 10/12/2011)
149 TEXT ORDER The court dismisses Defendants' Motion to Strike 125 as moot. Magistrate Judge Jacquelyn Austin has ruled in Defendants favor on the Motion to Compel 114 noting her consideration of the motion and Defendants' response only. Signed by Honorable J Michelle Childs on 10/12/11.(awil) (Entered: 10/12/2011)
150 TEXT ORDER The court grants Defendants' unopposed Motion to Quash or for a Protective Order 141 . Defendants shall be protected from the production of the limited quantity of documents which it seeks to protect from disclosure based on the attorney work product privilege. Defendants shall produce a privilege log containing a listing of such documents which are withheld on this basis. The privilege log shall be produced to Plaintiff within ten (10) days of the date of this order. Signed by Honorable J Michelle Childs on 10/12/11.(awil) (Entered: 10/12/2011)
151 Case Reassigned to Judge Honorable Timothy M Cain. Judge Honorable J Michelle Childs no longer assigned to the case. (glev, ) (Entered: 10/18/2011)
153 MOTION for Summary Judgment by Nikki Randhawa Haley, Marshall C Sanford. Response to Motion due by 11/14/2011 (Attachments: # 1 Memo in Support, # 2 Affidavit)No proposed order(Woodington, Kenneth) (Entered: 10/26/2011)
154 MOTION to Stay re 153 MOTION for Summary Judgment (motion to stay discovery as to defendants Haley and Sanford) by Nikki Randhawa Haley, Marshall C Sanford. Response to Motion due by 11/14/2011 No proposed order(Woodington, Kenneth) (Entered: 10/27/2011)

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155 ORDER denying 139 Motion for Reconsideration re 132 Order on Motion to Compel, Order on Motion for Sanctions. Signed by Magistrate Judge Jacquelyn D Austin on 10/28/11.(kmca) (Entered: 10/28/2011)
156 DEFENDANT'S ID OF EXPERT WITNESSES by Beverly Buscemi, Kelly Floyd, Nikki Randhawa Haley, Richard Huntress, Anthony Keck, Marshall C Sanford, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The.(Woodington, Kenneth) (Entered: 10/31/2011)
157 First MOTION for Extension of Time to File Response/Reply by Peter B, Jimmy Chip E, Michelle M. Response to Motion due by 11/28/2011 (Attachments: # 1 Exhibit Powley Award)No proposed order(Harrison, Patricia) (Entered: 11/07/2011)
159 TEXT ORDER granting 157 Motion for Extension of Time to File Response/Reply. Plaintiffs Responses to Defendants Sanford and Haley's Motion for Summary Judgment and Motion to Stay shall be due November 23, 2011. Signed by Honorable Timothy M Cain on 11/14/2011.(vmcd) (Entered: 11/14/2011)
160 RESPONSE in Opposition re 153 MOTION for Summary Judgment Response filed by Peter B, Jimmy Chip E, Michelle M.Reply to Response to Motion due by 12/5/2011 (Attachments: # 1 Exhibit senate Journal, March 2011, # 2 Exhibit 2003 Audit by DHHS, # 3 Exhibit Appointment Of MAP comm., # 4 Exhibit MAP comm. report, # 5 Exhibit Hickey order, # 6 Exhibit Affidavit of DDSN State director, # 7 Exhibit Carolina Medical review invest., # 8 Exhibit 2006 review of Waiver program, # 9 Exhibit Study, USC school of Public Health, # 10 Exhibit Steve Jeffcoat affidavit, # 11 Exhibit Sanford removal of Comm. Bagnal, # 12 Exhibit LAC Audit report, # 13 Exhibit Greenville pastor asked to resign, # 14 Exhibit Sanford posturing, # 15 Exhibit Wall St. Journal article, "Don't bail out my State", # 16 Exhibit Wall Street Journal, " Governors against bailouts, # 17 Exhibit Sanford letter to Obama, 2008, # 18 Exhibit Comptroller Eckstrom, news release, # 19 Exhibit Andy Laurent, Apology, # 20 Exhibit Forkner letter to CMS, # 21 Exhibit Forkner testimony, post and courier article, # 22 Exhibit HHS leaders leave SC, # 23 Exhibit DDSN letterhead with Governors names, # 24 Exhibit Haley TV interview, # 25 Exhibit Haley letter to Obama, # 26 Exhibit Haley joins with Govs for Medicaid reform, # 27 Exhibit Superfund site, Spartanburg, # 28 Exhibit Budget and Control Board minutes, # 29 Exhibit Affidavit of Carolyn Brown, # 30 Exhibit Scott English e−mails)(Harrison, Patricia) (Entered: 11/23/2011)
163 REPLY to Response to Motion re 154 MOTION to Stay re 153 MOTION for Summary Judgment (motion to stay discovery as to defendants Haley and Sanford), 153 MOTION for Summary Judgment Response filed by Nikki Randhawa Haley, Marshall C Sanford. (Attachments: # 1 Exhibit 1, Materials from 9−3−09 Budget and Control Board meeting)(Woodington, Kenneth) (Entered: 12/05/2011)
164 TEXT ORDER granting (Dkt. # 154) Motion to Stay Discovery as to Defendants Haley and Sanford until the court rules on these Defendants' pending Motion for Summary Judgment (Dkt. # 153). Signed by Honorable Timothy M. Cain on 12/8/2011.(vmcd) (Entered: 12/08/2011)
165 MOTION Compliance of one plaintiff's representatives wtih Medicaid requirements by Beverly Buscemi, Kelly Floyd, Richard Huntress, Anthony Keck, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The. Response to Motion due by 2/6/2012 (Attachments: # 1 Memo in Support, # 2 Exhibit 1, Federal Register, # 3 Exhibit 2, Excerpts from SC Medicaid Waiver Application, # 4 Exhibit 3, Letter of Patricia Harrison, # 5 Exhibit 4, E−mail, DHHS to CMS, # 6 Exhibit 5, E−mail, CMS to DHHS, # 7 Exhibit 6, Letter, DHHS to P. Harrison, # 8 Exhibit 7, E−mail from Patricia Harrison, # 9 Exhibit 8, Floyd Affidavit and attachments)No proposed order(Woodington, Kenneth) (Entered: 01/19/2012)
166 RESPONSE in Opposition re 165 MOTION Compliance of one plaintiff's representatives wtih Medicaid requirements Response filed by Peter B.Reply to Response to Motion due by 2/16/2012 (Attachments: # 1 Exhibit Service Coordination Manual, # 2 Exhibit Detailed Claims Report, # 3 Exhibit Correspondence, # 4 Exhibit 2010 Plan of Care, # 5 Exhibit 2011 Plan of Care, # 6 Exhibit Charles Lea Center Plan of Care, # 7 Exhibit Michael Floyd Service Notes, # 8 Exhibit Guardianship Order, # 9

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02/16/2012 03/06/2012 03/19/2012 03/20/2012 03/22/2012 03/22/2012 03/30/2012
03/30/2012

Exhibit DHHS Policy, # 10 Exhibit Affidavit of Lennie Mullis, # 11 Exhibit Affidavit of Mary Katherine Bagnal, # 12 Exhibit Declaration of Dr. Reel, # 13 Exhibit Declaration of Lennie Mullis 2010, # 14 Exhibit ALC Order on Consolidated Cases, # 15 Exhibit ALC Order on Chip E., # 16 Exhibit ALC Order on Michelle M.)(Harrison, Patricia). (Additional attachment(s) added on 2/8/2012: # 17 Exhibit Privilege list of emails) (gpre, ). Modified on 2/8/2012 to replace incorrect main document and incorrect attachment 3 with correct documents as provided by filing user (gpre, ). Modified on 2/9/2012 to replace unsigned main document with signed document as provided by filing user(gpre, ). (Entered: 02/06/2012)
168 REPLY to Response to Motion re 165 MOTION Compliance of one plaintiff's representatives wtih Medicaid requirements Response filed by Beverly Buscemi, Kelly Floyd, Richard Huntress, Anthony Keck, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The. (Attachments: # 1 Exhibit 1, Lacy Affidavit)(Woodington, Kenneth) (Entered: 02/16/2012)
169 MOTION to Dismiss based on mootness, MOTION for Summary Judgment based on mootness ( Response to Motion due by 3/23/2012) by Beverly Buscemi, Kelly Floyd, Nikki Randhawa Haley, Richard Huntress, Anthony Keck, Marshall C Sanford, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The. (Attachments: # 1 Memo in Support, # 2 Exhibit ALC Order, # 3 Exhibit Buscemi Affidavit, # 4 Exhibit DHHS Order (J.E.), # 5 Exhibit DHHS Order (M.M.))No proposed order(Woodington, Kenneth) (Entered: 03/06/2012)
170 Consent MOTION for Extension of Time (mediation and scheduling order deadlines) by Beverly Buscemi, Kelly Floyd, Nikki Randhawa Haley, Richard Huntress, Anthony Keck, Marshall C Sanford, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The. Response to Motion due by 4/5/2012 No proposed order(Woodington, Kenneth) (Entered: 03/19/2012)
171 TEXT ORDER granting 170 Consent Motion for Extension of Time. The deadlines in the Amended Scheduling Order (Dkt. # 135) are amended as follows: Mediation shall be completed before May 25, 2012; Dispositive motions are due June 5, 2012; Rule 26(a)(3) pretrial disclosures are due June 29, 2012; and this case is subject to jury selection and trial after September 10, 2012. Signed by Honorable Timothy M. Cain on 3/20/2012.(vmcd) (Entered: 03/20/2012)
172 First MOTION for Extension of Time to respond to Motion to Dismiss by Peter B, Jimmy Chip E, Michelle M. Response to Motion due by 4/9/2012 Proposed order is being emailed to chambers with copy to opposing counsel(Harrison, Patricia) (Entered: 03/22/2012)
173 TEXT ORDER granting 172 Motion for Extension of Time. Plaintiff shall have until March 30, 2012, to file a response to Defendants Motion toDismiss/Summary Judgment (Dkt. # 169). Signed by Honorable Timothy M. Cain on 3/22/2012.(vmcd) (Entered: 03/22/2012)
174 Amicus Curiae APPEARANCE entered by Sarah Garland St Onge on behalf of Protection and Advocacy for People with Disabilities Inc, South Carolina Chapter of the National Academy of Elder Law Attorneys, South Carolina Legal Services. (Attachments: # 1 Exhibit Attachment 1 − Complaint in P&A v. DDSN, # 2 Exhibit Attachment 2 − DDSN ID/RD Waiver Manual, Chapter 1, What is a Waiver, # 3 Exhibit Attachment 3 − DDSN ID/RD Waiver Manual, Chapter 10, Personal Care Services, # 4 Exhibit Attachment 4 − Forkner Interrogatories from Hickey v. Forkner, No. 4:10−2696−TLW−TER, # 5 Exhibit Attachment 5 − Pashby v. Cansler, No: 5:11−CV−273−BO, 2011 WL 6130819, slip op. (E.D.N.C., Dec. 8, 2011), # 6 Exhibit Attachment 6 − Buscemi Interrogatories from Hickey v. Forkner, No. 4:10−2696−TLW−TER, # 7 Exhibit Attachment 7 − Affidavit of Anthony E. Keck, # 8 Appendix Attachments Index to Brief of Amici Curiae)(St Onge, Sarah) (Entered: 03/30/2012)
175 RESPONSE in Opposition re 169 MOTION to Dismiss based on mootness MOTION for Summary Judgment based on mootness Response filed by Peter B, Jimmy Chip E, Michelle M.Reply to Response to Motion due by 4/9/2012 (Attachments: # 1 Exhibit

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04/04/2012
04/04/2012 04/05/2012 04/18/2012 04/23/2012 04/24/2012 05/17/2012 05/18/2012 06/13/2012 06/14/2012

Affidavit of Rob Pruitt dated March 30, 2012, # 2 Exhibit Affidavit of Lennie Mullis dated March 30, 2012, # 3 Exhibit Affidavit of Barbara Morgan dated March 30, 2012, # 4 Exhibit Affidavit of Chip E. dated March 30, 2012, # 5 Exhibit Affidavit of sister of Chip E. dated March 30, 2012, # 6 Exhibit Decision of SC ALC in Susan E., Jimmy "Chip" E., Michelle M. and albert M., # 7 Exhibit Barbara Hickey v. DHHS, # 8 Exhibit Affidavit of Carolyn Myers dated March 30, 2012, # 9 Exhibit First Decision of Hearing Officer in Myers v. DHHS, # 10 Exhibit Second Decision of Hearing Officer in Myers v. DHHS)(Harrison, Patricia) Modified on 4/5/2012 to replace attachments 3, 4, 1nd 5 with corrected documents as provided by filing user (gpre, ). (Entered: 03/30/2012)
176 Consent MOTION for Extension of Time to File Response/Reply as to 169 MOTION to Dismiss based on mootness MOTION for Summary Judgment based on mootness, 175 Response in Opposition to Motion,,, 174 Amicus Curiae Appearance,,, by Beverly Buscemi, Kelly Floyd, Nikki Randhawa Haley, Richard Huntress, Anthony Keck, Marshall C Sanford, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The. Response to Motion due by 4/23/2012 No proposed order(Woodington, Kenneth) (Entered: 04/04/2012)
177 NOTICE of Appearance by Philip James Corson on behalf of South Carolina Chapter of the National Academy of Elder Law Attorneys (Corson, Philip) (Main Document 177 replaced on 4/10/2012) (gpre, ). Modified on 4/10/2012 to replace document with corrected signature as provided by filing user (gpre, ). (Entered: 04/04/2012)
178 TEXT ORDER granting 176 Consent Motion for Extension of Time to File Response/Reply. Defendants shall have until April 23, 2012, to file a reply to Plaintiffs' Response in opposition to Defendants' Motion to Dismiss based on mootness and the brief filed by the amici. Signed by Honorable Timothy M. Cain on 4/5/2012.(vmcd) (Entered: 04/05/2012)
180 Consent MOTION for Extension of Time to File Response/Reply as to 175 Response in Opposition to Motion,,,, (second extension request) by Beverly Buscemi, Kelly Floyd, Nikki Randhawa Haley, Richard Huntress, Anthony Keck, Marshall C Sanford, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The. Response to Motion due by 5/7/2012 No proposed order(Woodington, Kenneth) (Entered: 04/18/2012)
181 REPLY to Response to Motion re 169 MOTION to Dismiss based on mootness MOTION for Summary Judgment based on mootness Response filed by Beverly Buscemi, Kelly Floyd, Nikki Randhawa Haley, Richard Huntress, Anthony Keck, Marshall C Sanford, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The. (Woodington, Kenneth) (Entered: 04/23/2012)
182 TEXT ORDER granting 180 Consent Motion for Extension of Time to File Response/Reply. The time for filing a reply brief is extended until April 30, 2012. Signed by Honorable Timothy M. Cain on 4/24/2012.(vmcd) (Entered: 04/24/2012)
183 MOTION for Extension of Time by Peter B, Jimmy Chip E, Michelle M. Response to Motion due by 6/4/2012 Proposed order is being emailed to chambers with copy to opposing counsel(Harrison, Patricia) (Entered: 05/17/2012)
184 TEXT ORDER granting 183 Consent Motion for Extension of Time. The deadline for mediation is extended until June 15, 2012. The deadline for dispositive motions is extended until July 17, 2012, and the Rule 26(a)(3) disclosures deadline is extended until August 10, 2012. This case remains scheduled for jury selection and trial on, or after, September 10, 2012. Signed by Honorable Timothy M. Cain on 5/18/2012.(vmcd, ) (Entered: 05/18/2012)
185 ORDER granting 153 Motion for Summary Judgment. Defendants Sanford and Haley are dismissed from this action. Signed by Honorable Timothy M Cain on 6/13/2012.(pbri, ) (Entered: 06/13/2012)
187 NOTICE of Request for Protection from Court Appearance by Patricia L Harrison for June 25,2012−July 10, 2012 Associated Cases: 6:10−cv−00767−TMC, 3:11−cv−01146−TMC, 3:12−cv−00007−TMC, 8:11−cv−02215−TMC(Harrison,

Case: 6:10-cv-767 As of: 03/03/2020 10:54 AM EST 18 of 30

06/15/2012 06/18/2012 06/25/2012 06/27/2012 06/27/2012 06/27/2012
07/13/2012
07/13/2012 07/27/2012 07/27/2012 08/15/2012 08/16/2012
08/16/2012

Patricia) (Entered: 06/14/2012)
188 Consent MOTION for Extension of Time (mediation and dispositive motion deadlines) by Beverly Buscemi, Richard Huntress, Anthony Keck, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The. Response to Motion due by 7/2/2012 No proposed order(Woodington, Kenneth) (Entered: 06/15/2012)
189 TEXT ORDER granting 188 Joint Motion for Extension of Time. The deadline for mediation is extended to July 16, 2012, and the deadline for dispositive motions shall be August 16, 2012. Signed by Honorable Timothy M. Cain on 6/18/2012.(vmcd) (Entered: 06/18/2012)
190 MOTION for Reconsideration re 185 Order on Motion for Summary Judgment by Peter B, Jimmy Chip E, Michelle M. Response to Motion due by 7/12/2012 No proposed order(Harrison, Patricia) Modified on 6/29/2012 to replace document with corrected signature as provided by filing user (gpre, ). (Entered: 06/25/2012)
191 MOTION to Amend/Correct by Peter B, Jimmy Chip E, Michelle M. Response to Motion due by 7/16/2012 No proposed order(Harrison, Patricia) (Entered: 06/27/2012)
192 TEXT ORDER granting 191 Motion to Amend/Correct. Signed by Honorable Timothy M. Cain on 6/27/2012.(vmcd) (Entered: 06/27/2012)
193 ORDER denying 190 Motion for Reconsideration re 185 Order on Motion for Summary Judgment. Plaintiffs have not demonstrated a recent change in the law, newly discovered evidence, or a clear error by this court which merits any alteration or amendment to the prior order. Signed by Honorable Timothy M Cain on 6/27/12.(kmca) (Main Document 193 replaced on 6/27/2012 to correct typo per chambers) (kmca). (Entered: 06/27/2012)
194 Joint MOTION for Extension of Time (mediation and certain scheduling order deadlines) by Beverly Buscemi, Kelly Floyd, Richard Huntress, Anthony Keck, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The, Peter B, Jimmy Chip E, Michelle M. Response to Motion due by 7/30/2012 No proposed order(Woodington, Kenneth) Modified on 7/18/2012 to add filers listed on document. (gpre, ). (Entered: 07/13/2012)
195 TEXT ORDER granting 194 Joint Motion for Extension of Time. Thedeadline for mediation is extended until August 3, 2012, and the deadline for Rule 26(a)(3) disclosures is extended until September 15, 2012. Furthermore, this case is subject to being called for jury selection after October 1, 2012. Signed by Honorable Timothy M. Cain on 7/13/2012.(vmcd) (Entered: 07/13/2012)
196 NOTICE OF APPEAL as to 193 Order on Motion for Reconsideration, by Peter B, Jimmy Chip E, Michelle M. − Filing fee $ 455, receipt number 0420−4210331. The Docketing Statement form, Transcript Order form and CJA 24 form may be obtained from the Fourth Circuit website at www.ca4.uscourts.gov (Harrison, Patricia) (Entered: 07/27/2012)
197 Transmittal Sheet for Notice of Appeal to USCA re 196 Notice of Appeal, The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. (gpre, ) (Entered: 07/27/2012)
199 NOTICE of Request for Protection from Court Appearance by Kenneth Paul Woodington for 8/17/12 − 8/30/12 (Woodington, Kenneth) (Entered: 08/15/2012)
200 MOTION for Summary Judgment by Beverly Buscemi, Kelly Floyd, Richard Huntress, Anthony Keck, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The. Response to Motion due by 9/4/2012. (Attachments: # 1 Memo in Support, # 2 Exhibit 1, Lacy Affidavit, # 3 Exhibit 2, Roberts Affidavit)No proposed order.(Woodington, Kenneth) (Entered: 08/16/2012)
201 MOTION for Summary Judgment by Peter B, Jimmy Chip E. Response to Motion due by 9/4/2012. (Attachments: # 1 Memo in Support, # 2 Exhibit−Declaration of Tod R.

Case: 6:10-cv-767 As of: 03/03/2020 10:54 AM EST 19 of 30

08/17/2012 08/21/2012 08/21/2012
08/23/2012 08/24/2012

Reel, MD, # 3 Exhibit−Statement of Dr. Thomas Collings, # 4 Exhibit−Statement of William Baker, PhD, # 5 Exhibit−Statement of Marilyn Whorton, RD, # 6 Exhibit−Declarations of Lennie Mullis, # 7 Exhibit−Mullis v. SCDHHS, April 23, 2012, # 8 Exhibit−Mullis v. SCDHHS, 2005, # 9 Exhibit−Elledge v. SCDHHS, SC Supreme Cour, # 10 Exhibit−Elledge v. SCDHHS Amicus Brief of SC Chapter of NAELA, # 11 Exhibit−Elledge v. SCDHHS, Amicus Brief of SC Legal Services, # 12 Exhibit−Brown v. SCDHHS, SC Court of Appeals, # 13 Exhibit−Brown v. SCDHHS, Final Brief of Appellant, # 14 Exhibit−Brown v. SDDHHS, Reply Brief of Appellant, # 15 Exhibit−Barbara Hickey v. SCDHHS, # 16 Exhibit−Affidavit of Beverly Buscemi, Director of SCDDSN, # 17 Exhibit−D.L.B. v. SCDHHS, # 18 Exhibit−Protection and Advocacy, et al. v. SCDDSN, # 19 Exhibit−Declaration of Carolyn Brown, # 20 Exhibit−Testimony of Janet Priest in consolidated case on Remand to SC DHHS from SC ALC, # 21 Exhibit−Testimony of Kara Lewis in consolidated case on Remand to SC DHHS from SC ALC, # 22 Exhibit−MR/RD Waiver application submitted to CMS 2004−2009, # 23 Exhibit−MR/RD Waiver application submitted to CMS 2010−2015, # 24 Exhibit−Dec. 27, 2004, letter from Charles Lea Center to Dennis Bolt, Esquire, # 25 Exhibit−Letter of Feb. 28, 2005, to Carolyn Brown from SCDDSN, # 26 Exhibit−Affidavit of Lennie Mullis, # 27 Exhibit−Declaration of Chip E., # 28 Exhibit−Declaration of Barbara Morgan, # 29 Exhibit−Respondents brief, SC Court of Appeals, # 30 Exhibit−Order of the Administrative Law Court)Proposed order is being emailed to chambers with copy to opposing counsel.(Harrison, Patricia) Modified on 8/20/2012 to add descriptions to attachments (gpre, ). (Additional attachment(s) added on 8/20/2012: # 31 List of attachments) (gpre, ). (Entered: 08/16/2012)
202 MOTION to Amend/Correct by Peter B, Jimmy Chip E, Michelle M. Response to Motion due by 9/4/2012. No proposed order.(Harrison, Patricia) (Entered: 08/17/2012)
203 TEXT ORDER granting 202 Motion to Amend/Correct. Plaintiffs shall have until August 21, 2012, to file an Amended Motion for Summary Judgment. Signed by Honorable Timothy M. Cain on 8/21/2012.(vmcd) (Entered: 08/21/2012)
207 Amended MOTION for Summary Judgment by Peter B, Jimmy Chip E, Michelle M. Response to Motion due by 9/7/2012. (Attachments: # 1 Memo in Support Amended Memo in support, # 2 Exhibit 1. declaration of Tod Reel,MD, # 3 Exhibit 2. statement of Dr. T. Collings, # 4 Exhibit 3.Statement of W. Baker, PhD, # 5 Exhibit 4. Statement of M. Whorton, RD, # 6 Exhibit 5.Declarations of Lennie Mullis, # 7 Exhibit 6.Mullis v. SCDHHS, 2012, # 8 Exhibit 7.Mullis v. SCDHHS, 2005, # 9 Exhibit 8. Elledge v. SCDHHS, S. Court, # 10 Exhibit 9.Amicus Brief, Elledge v. SCDHHS, # 11 Exhibit 10. amicus brief, Elledge v. SCDDSN, # 12 Exhibit Brown v. SCDHHS,Crt of Appeals, # 13 Exhibit 12. brown v. SCDHHS, Final Brief, # 14 Exhibit Brown v. SCDHHS, Reply Brief, # 15 Exhibit 14.Hickey v. SCDHHS, # 16 Exhibit 15. affidavit of Beverly Buscemi, # 17 Exhibit 16.D.L.B. v. SCDHHS, # 18 Exhibit 17.Protection and advocacy, v. SCDDSN, # 19 Exhibit 18 declaration of Carolyn Brown, # 20 Exhibit 19. Testimony of Janet Priest, # 21 Exhibit 20. testimony of Kara Lewis, # 22 Exhibit 21.MRRD Waiver application, 04−09, # 23 Exhibit 22. MRRD waiver application, 2010−2015, # 24 Exhibit 23. letter from Charles Lea Center to Dennis Bolt, Esq., # 25 Exhibit 24. letter to C. Brown from SCDDSN, # 26 Exhibit 25. Declaration of L. Mullis, # 27 Exhibit 26. Declaration of Chip E., # 28 Exhibit 27. Declaration of Barbara Morgan, # 29 Exhibit 28, Brown v. DHHS, Resp. Brief, # 30 Exhibit 29. Order of ALC in Consolidated Case)No proposed order.(Harrison, Patricia) Modified on 8/24/2012 to correct filed date (gpre, ). Modified on 8/24/2012 to correct response due date (gpre, ). (Entered: 08/23/2012)
206 MOTION for Extension of Time to File Response/Reply as to 201 MOTION for Summary Judgment by Beverly Buscemi, Kelly Floyd, Richard Huntress, Anthony Keck, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The. Response to Motion due by 9/10/2012. No proposed order.(Davidson, William) (Entered: 08/23/2012)
208 TEXT ORDER granting 206 Consent Motion for Extension of Time to File Responses to Summary Judgement Motions. Defendants shall have until September 18, 2012, in which to file a response to Plaintiffs' Amended Summary Judgment Motion and Plaintiffs shall have also have until September 18, 2012, to file a response to Defendants' Summary Judgment Motion. Signed by Honorable Timothy M. Cain on 8/24/2012.(vmcd, ) (Entered: 08/24/2012)

Case: 6:10-cv-767 As of: 03/03/2020 10:54 AM EST 20 of 30

08/24/2012 09/13/2012 09/13/2012 09/21/2012 09/21/2012 09/28/2012

209 DELETION OF DOCKET ENTRY NUMBER 205 Reason: refiled to correctly attach all exhibits. Corrected Filing Document Number 207 . Modified filing date to that of original filing: 8/21/2012 Response due date modified to that of original filing: 9/7/2012 (gpre, ) (Entered: 08/24/2012)
212 MOTION for Extension of Time to File Response/Reply as to 207 Amended MOTION for Summary Judgment (and to defer Rule 26(a)(3) responses) by Beverly Buscemi, Kelly Floyd, Richard Huntress, Anthony Keck, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The. Response to Motion due by 10/1/2012. No proposed order.(Woodington, Kenneth) (Entered: 09/13/2012)
213 TEXT ORDER granting 212 Consent Motion for Extension of Time to File Response/Reply. The parties shall have until September 21, 2012, to file responses to the pending motions for summary judgment which were filed by Plaintiffs and Defendants on August 16,2012 (Dkt. # 200 and 201). Further, the deadline to file Rule 26(a)(3) disclosures is stayed pending further order of the court. Signed by Honorable Timothy M. Cain on 9/13/2012.(vmcd, ) (Entered: 09/13/2012)
214 RESPONSE in Opposition re 207 Amended MOTION for Summary Judgment , 201 MOTION for Summary Judgment Response filed by Beverly Buscemi, Kelly Floyd, Richard Huntress, Anthony Keck, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The.Reply to Response to Motion due by 10/1/2012 (Attachments: # 1 Exhibit 1, Affidavitof Dr. Graeme Johnson)(Woodington, Kenneth) (Entered: 09/21/2012)
215 RESPONSE in Opposition re 200 MOTION for Summary Judgment Response filed by Peter B, Jimmy Chip E, Michelle M.Reply to Response to Motion due by 10/1/2012 (Attachments: # 1 Exhibit Declaration of Melmouth Patterson, MD)(Harrison, Patricia) (Entered: 09/21/2012)
216 TEXT ORDER Modified on 9/28/2012 to add text. (pbri) Counsel for the parties had an informal telephone conference with the court on September 13, 2012, in an attempt to resolve the issues raised in Defendants Motion to Require Plaintiffs Representatives to Comply with Certain Program Requirements. (Dkt. # 165). The parties have communicated the results of their efforts to the court. The parties have agreed to use Suzanne Yankovich to provide financial management and Plaintiff has agreed to provide any records requested by Yankovich and consent, as needed, for her to obtain any information she needs to protect the health and welfare of Peter B. However, Plaintiff specifically has not agreed to allow Yankovich to meet with Peter B. outside of the presence of his guardian or guardian ad litem or perform any assessment of Peter B. without notice to and the consent of Peters guardian or guardian ad litem. Otherwise, Plaintiff has agreed to cooperate fully in providing records and information necessary to provide administrative oversight which the Defendants require. The Defendants contend that the administrative oversight plan set forth in Dkt. # 165−5 should govern in its entirety and they object [t]o the extent that . . . Plaintiffs counsel contemplates something other or less than provided in this document. At this time, it does not appear to the court that the parties positions are in conflict. The parties have agreed that Yankovich is to provide the necessary oversight and Plaintiff has agreed to fully cooperate with her provided Yankovich does not meet with Peter B. outside of the presence of his guardian or guardian ad litem or perform an assessment without notice and consent from Peter B.s guardian or guardian ad litem. Accordingly, Yankovich is designated to provide the administrative oversight and financial management in regard to Peter B. The parties are to cooperate with each other in scheduling meetings and assessments between Yankovich and Peter B., and the guardian or guardian ad litem is to be present at such meetings and assessments. The guardian or guardian ad litem shall consent as necessary to allow Yankovich access to Peter B's medical or financial records as may be necessary for completion of the assessments and to provide the appropriate administrative oversight which the Defendants require. Based on the foregoing, the court finds Defendants Motion for Compliance (Dkt. # 165) moot . However, should Plaintiffs guardian or guardian ad litem fail to cooperate with Yankovich, Defendants may re−new their motion for compliance and seek appropriate relief, including a modification of the Temporary Injunction Order filed March 7, 2011 (Dkt. # 95). Second modification made to

Case: 6:10-cv-767 As of: 03/03/2020 10:54 AM EST 21 of 30

09/28/2012 10/01/2012 10/11/2012 10/11/2012
10/12/2012
10/25/2012 10/29/2012 11/16/2012 11/26/2012 11/28/2012

correct typographical error 9/28/2012 (pbri, ). (Entered: 09/28/2012)
217 MOTION for Extension of Time by Peter B, Jimmy Chip E, Michelle M. Response to Motion due by 10/15/2012. No proposed order.(Harrison, Patricia) (Entered: 09/28/2012)
218 TEXT ORDER granting 217 Consent Motion for Extension of Time. The parties shall have until October 11, 2012, to file replies to the responses to the pending summary judgment motions. Signed by Honorable Timothy M. Cain on 10/1/2012.(vmcd) (Entered: 10/01/2012)
219 REPLY to Response to Motion re 200 MOTION for Summary Judgment Response filed by Beverly Buscemi, Kelly Floyd, Richard Huntress, Anthony Keck, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The. (Attachments: # 1 Exhibit Affidavit of Kathi Lacy)(Woodington, Kenneth) (Entered: 10/11/2012)
220 RESPONSE in Support re 201 MOTION for Summary Judgment Response filed by Peter B, Jimmy Chip E, Michelle M. (Attachments: # 1 Exhibit 1−October 10, 2012, Plan of care of Peter, # 2 Exhibit 1A−Am Diabetes Assoc Standards of Medical Care in Diabetes, 2012, # 3 Exhibit 1B−Medical Guidelines for Clinical Practice for Developing a Diabetes Mellitus Comprehensive Care Plan, # 4 Exhibit 1C−William M Baker PhD, # 5 Exhibit 1D−Tod M Reel MD, # 6 Exhibit 1E−Luther A Diehl PhD, # 7 Exhibit 1F−Legal Agreement with The Charles Lea Center, # 8 Exhibit 2−Declaration of Guardian of Peter B, # 9 Exhibit 3−Declaration of Barbara M, # 10 Exhibit 4−Declaration of Brook Waddle, # 11 Exhibit 5−Letter to Vastine Crouch, # 12 Exhibit 6−Declaration of Sandra Ray, # 13 Exhibit 7−FY 2010 Report of Comptroller General of South Carolina)(Harrison, Patricia) Modified on 10/16/2012 to add descriptions to attachments (gpre, ). (Additional attachment(s) added on 10/16/2012: # 14 Exhibit List) (gpre, ). (Entered: 10/12/2012)
221 TEXT ORDER. During an informal telephone conference with counsel on September 13, 2012, counsel represented to the court that another mediation may be benficial in this action. Accordingly, a mediation in this action is to be completed prior to December 17, 2012. In conducting this mediation, the parties are to follow the requirements set forth in the court's prior order regarding mediation. (Dkt. # 135). Signed by Honorable Timothy M. Cain on 10/12/2012. (vmcd) (Entered: 10/12/2012)
224 USCA MANDATE and ORDER as to 196 Notice of Appeal, filed by Michelle M, Jimmy Chip E, Peter B dismissing the appeal. (Attachments: # 1 4CCA Order)(gpre, ) (Entered: 10/25/2012)
225 MOTION to Amend/Correct 216 Order on Motion for Miscellaneous Relief,,,,,,,,,,, by Beverly Buscemi, Kelly Floyd, Richard Huntress, Anthony Keck, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The. Response to Motion due by 11/16/2012. (Attachments: # 1 Exhibit Provider list)No proposed order.(Woodington, Kenneth) (Entered: 10/29/2012)
226 REPLY to Response to Motion re 225 MOTION to Amend/Correct 216 Order on Motion for Miscellaneous Relief,,,,,,,,,,, Response filed by Peter B. (Attachments: # 1 Exhibit Testimony of Janet Brock Priest in Consolidated case on Remand to HHS from SC ALC)(Harrison, Patricia) (Entered: 11/16/2012)
227 REPLY to Response to Motion re 225 MOTION to Amend/Correct 216 Order on Motion for Miscellaneous Relief,,,,,,,,,,, Response filed by Beverly Buscemi, Kelly Floyd, Richard Huntress, Anthony Keck, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The. (Woodington, Kenneth) (Entered: 11/26/2012)
228 ORDER granting 225 Motion to Amend Text Order, so as to clarify the designation of the service provider in the Order. Accordingly the Order of September 28, 2012 (docket #216) is modified to provide as follows: Signed by Honorable Timothy M Cain on 1128/2012.(gpre, ) (Entered: 11/28/2012)

Case: 6:10-cv-767 As of: 03/03/2020 10:54 AM EST 22 of 30

02/13/2013 02/20/2013 03/07/2013
03/20/2013 04/02/2013
04/03/2013 05/06/2013 06/27/2013 08/20/2013 09/11/2013 09/27/2013
10/21/2013 12/02/2013 05/02/2014 05/19/2014

229 TEXT ORDER. The parties are to file a joint informal status report about the outcome of the administrative hearing which was originally scheduled to begin November 13, 2012, in regard to Plaintiff Peter B. by February 20, 2013. Signed by Honorable Timothy M. Cain on 2/13/2013. (vmcd) (Entered: 02/13/2013)
230 STATUS REPORT (Joint) by Peter B, Beverly Buscemi, Kelly Floyd, Richard Huntress, Anthony Keck, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The. (Woodington, Kenneth) (Entered: 02/20/2013)
231 ORDER denying as moot 169 Motion to Dismiss and/or for Motion for Summary Judgment; granting in part and denying in part 200 Motion for Summary Judgment; denying 207 Motion for Summary Judgment. Plaintiffs Chip E. and Michelle M. are dismissed. Further, this action is stayed pending the resolution of the state proceedings. Signed by Honorable Timothy M Cain on 3/7/2013.(gpre, ) (Entered: 03/07/2013)
233 NOTICE of Request for Protection from Court Appearance by Patricia L Harrison for April 10, 2013 to April 22, 2013 (Harrison, Patricia) (Entered: 03/20/2013)
234 NOTICE OF APPEAL as to 231 Order on Motion to Dismiss, Order on Motion for Summary Judgment,,,,,, by Jimmy Chip E, Michelle M. − Filing fee $ 455, receipt number 0420−4644812. The Docketing Statement form, Transcript Order form and CJA 24 form may be obtained from the Fourth Circuit website at www.ca4.uscourts.gov (Harrison, Patricia) (Entered: 04/02/2013)
235 Transmittal Sheet for Notice of Appeal to USCA re 234 Notice of Appeal, The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. (gpre, ) (Entered: 04/03/2013)
237 NOTICE of Request for Protection from Court Appearance by Kenneth Paul Woodington for May 16−17, June 10−21 (Woodington, Kenneth) (Entered: 05/06/2013)
238 NOTICE of Request for Protection from Court Appearance by Patricia L Harrison for July 8, 2013 through July 17, 2013 (Harrison, Patricia) (Entered: 06/27/2013)
239 ORDER of USCA as to 234 Notice of Appeal, filed by Michelle M, Jimmy Chip E. granting motion to dismiss Appeal. Judgement shall take effect upon issuance of 4CCA mandate. (Attachments: # 1 Judgment)(gpre, ) (Entered: 08/20/2013)
240 USCA MANDATE and JUDGMENT as to 234 Notice of Appeal, filed by Michelle M, Jimmy Chip E. Appeal is dismissed. (Attachments: # 1 Judgment)(gpre, ) (Entered: 09/11/2013)
241 STATUS REPORT (Second joint informal) by Peter B, Beverly Buscemi, Kelly Floyd, Richard Huntress, Anthony Keck, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The. (Attachments: # 1 Exhibit DHHS order and notice of appeal)(Woodington, Kenneth) Modified on 9/30/2013 to add filer listed on document (gpre, ). (Entered: 09/27/2013)
242 NOTICE of Request for Protection from Court Appearance by Patricia L Harrison for October 28 − November 8, 2013 (Harrison, Patricia). Modified on 10/30/2013 to replace corrected document as provided by filing user(gpre, ). (Entered: 10/21/2013)
244 NOTICE of Request for Protection from Court Appearance by Patricia L Harrison for December 18 − 28, 2013 (Harrison, Patricia) (Entered: 12/02/2013)
245 NOTICE of Request for Protection from Court Appearance by Kenneth Paul Woodington for June 16 through June 20, 2014 and August 1 through August 15, 2014. (Woodington, Kenneth) (Entered: 05/02/2014)
247 STATUS REPORT by Beverly Buscemi, Kelly Floyd, Richard Huntress, Anthony Keck, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The. (Attachments: # 1 Exhibit Exhibit 1, February 2014 ALC order, # 2 Exhibit Exhibit 2, April 28, 2014, Court of Appeals order)(Woodington, Kenneth) (Entered: 05/19/2014)

Case: 6:10-cv-767 As of: 03/03/2020 10:54 AM EST 23 of 30

05/20/2014
05/23/2014 05/27/2014 05/27/2014
05/27/2014 06/13/2014 07/01/2014 07/01/2014
07/01/2014 07/10/2014

248 TEXT ORDER. On May 19, 2014, at the request of the court, Defendants filed an informal status report. (ECF No. 247). Defendants state that in the state action currently pending before the South Carolina Court of Appeals, Plaintiff Peter B.'s counsel filed a motion to be relieved as counsel which was granted on April 28, 2014. Plaintiff is ordered to file an informal status report by May 23, 2014, and it is to include her status as Peter B.'s counsel in this action. Signed by Honorable Timothy M. Cain on 5/20/2014. (vmcd, ) (Entered: 05/20/2014)
250 STATUS REPORT of Plaintiffs by Peter B. (Attachments: # 1 Exhibit Transcript of September 4, 2013 Oral Arguments at SC Administrative Law Court, # 2 Exhibit Affidavit of Carolyn Brown dated September 3, 2014, # 3 Exhibit 2009 Cost of MR/RD Medicaid Waiver, # 4 Exhibit 2010 Cost of MR/RD Mediaid Waiver)(Harrison, Patricia). Modified on 5/27/2014 to replace unsigned document with signed document as provided by filing user. (gpre, ). (Entered: 05/23/2014)
251 MOTION to Amend/Correct 250 Status Report, by Peter B, Jimmy Chip E. Response to Motion due by 6/13/2014. (Attachments: # 1 Exhibit Corrected Status Report, # 2 Exhibit Transcript of Brown Hearing at ALC 4Sep13, # 3 Exhibit Declaration of Carolyn Brown 4Sep13, # 4 Exhibit 2009 Cost of MR/RD Medicaid Waiver (2008 Ltr), # 5 Exhibit 2010 Cost of MR/RD Medicaid Waiver (2009 Ltr))No proposed order.(Harrison, Patricia) (Entered: 05/27/2014)
252 TEXT ORDER. Plaintiffs' counsel was ordered to file a status report which included her status as Plaintiff Peter B.'s counsel in this action. (ECF No. 248). The proposed corrected status report does not include any such discussion. (ECF No. 251−1). Therefore, counsel is ordered to file an additional status report, not to exceed two pages, solely addressing her continued representation of Plaintiffs in this action by 5pm today. Signed by Honorable Timothy M. Cain on 5/27/2014. (vmcd) (Entered: 05/27/2014)
253 STATUS REPORT Second Status Report of Plaintiffs by Peter B. (Attachments: # 1 Exhibit SCDHHS Ruling on Enforcement of Fourth Circuit Order 28Apr14, # 2 Exhibit Motion to Enforce Fourth Circuit Order 4Apr14, # 3 Exhibit Declaration of Carolyn Brown 4Sep14)(Harrison, Patricia). Modified on 5/28/2014 to replace corrected document as provided by filing user (gpre, ). (Entered: 05/27/2014)
255 REPLY by Beverly Buscemi, Kelly Floyd, Richard Huntress, Anthony Keck, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The to 253 Status Report, 250 Status Report, . (Woodington, Kenneth) (Entered: 06/13/2014)
256 MOTION to Dismiss (mootness) by Beverly Buscemi, Kelly Floyd, Richard Huntress, Anthony Keck, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The. Response to Motion due by 7/18/2014. (Attachments: # 1 Memo in Support)No proposed order.(Woodington, Kenneth) (Entered: 07/01/2014)
257 NOTICE of Hearing: Attorney Representation Hearing set for 7/10/2014 10:30 AM in G Ross Anderson Jr Court House, 315 S McDuffie St, Anderson before Honorable Timothy M Cain. This hearing is scheduled for the limited purpose for the court to resolve the issues on the representation of Peter B. No other issues will be addressed at this time.All counsel of record for plaintiff must attend. Plaintiffs counsel is to provide Peter B., and his guardian, Carolyn Brown, notice of this hearing and file a certificate of service of notice with the court. (pbri, ) (Entered: 07/01/2014)
258 CERTIFICATE OF SERVICE by Peter B, Jimmy Chip E, Michelle M re 257 Notice of Hearing. (Attachments: # 1 Exhibit 257 Hearing Notice)(kmca) Document re−filed by clerk to correct event type (kmca) (Entered: 07/02/2014)
259 Minute Entry. Proceedings held before Honorable Timothy M Cain: Status Conference held on 7/10/2014. Plaintiffs shall file a document within 15 days stating succinctly who they represent, and their retainer agreements, or notify the court no such document exists. In addition, all 3 counsel shall review all filings. Patricia Harrison and Kenneth Anthony say they represent the guardian ad litem, Sandra Kerr Ray. Kenneth Woodington shall submit fees and costs for the issue of representation including this hearing within 30 days. Court Reporter Karen Martin. (pbri, ) (Entered: 07/10/2014)

Case: 6:10-cv-767 As of: 03/03/2020 10:54 AM EST 24 of 30

07/10/2014 07/10/2014
07/19/2014 07/21/2014 07/22/2014 07/22/2014 07/22/2014
07/22/2014 07/24/2014 07/24/2014 07/29/2014 07/29/2014

260 COURT EXHIBIT 1. (pbri, ) (Entered: 07/10/2014)
262 TEXT ORDER. As a result of the hearing held on July 10, 2014, the court enters the following Order. Within 15 days, Plaintiff's counsel and the Guardian ad Litem shall file: 1) a declaration setting forth their representation in this case which is responsive to the court's previous orders (ECF Nos. 248 and 252); and 2) copies of any and all retainer agreements, employment agreements, engagement letters or other documents pertaining to this litigation. If these documents contain privileged information or information not subject to disclosure, counsel shall file appropriately redacted copies along with an un−redacted copies under seal. Additionally, all of Plaintiff's future motions, pleadings, or other papers filed with the court shall contain the electronic signatures of all counsel of record and the Guardian ad Litem. Within 30 days Defendants' counsel shall file an affidavit or declaration setting forth the attorneys fees and costs incurred by the Defendants in regard to this hearing. Finally, a copy of all future pleadings and motions filed in this case shall be provided to Ms. Carolyn Brown by the person filing the document. Signed by Honorable Timothy M. Cain on 7/10/2014. (vmcd) (Entered: 07/10/2014)
264 RESPONSE in Opposition re 256 MOTION to Dismiss (mootness) Response to Motion to Dismiss Response filed by Peter B.Reply to Response to Motion due by 7/31/2014 (Attachments: # 1 Exhibit Affidavit of GAL)(Harrison, Patricia) (Entered: 07/19/2014)
265 MOTION for Extension of Time to File Response/Reply as to 264 Response in Opposition to Motion to Dismiss by Peter B, Jimmy Chip E, Michelle M. Response to Motion due by 8/7/2014. No proposed order.(Harrison, Patricia) (Entered: 07/21/2014)
266 TEXT ORDER granting 265 Motion for Extension of Time to File Response/Reply. Signed by Honorable Timothy M. Cain on July 22, 2014.(jeca, ) (Entered: 07/22/2014)
267 AFFIDAVIT of Kenneth P. Woodington re 262 Order,,,,, (fees and costs) by Beverly Buscemi, Kelly Floyd, Richard Huntress, Anthony Keck, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The. (Woodington, Kenneth) (Entered: 07/22/2014)
269 CERTIFICATE OF SERVICE by Peter B, Jimmy Chip E, Michelle M re 266 Order on Motion for Extension of Time to File Response/Reply, 265 MOTION for Extension of Time to File Response/Reply as to 264 Response in Opposition to Motion to Dismiss, 264 Response in Opposition to Motion (Harrison, Patricia). # 1 Certificate of Service) (gpre, ). Modified on 7/24/2014 to replace correctly signed main document as provided by filing user. (gpre, ). (Entered: 07/22/2014)
270 CERTIFICATE OF SERVICE by Beverly Buscemi, Kelly Floyd, Richard Huntress, Anthony Keck, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The re 267 Affidavit. Refiled by clerk to correct event type. (gpre, ) (Entered: 07/24/2014)
271 DELETION OF DOCKET ENTRY NUMBER 268 Reason: Incorrect signature, incorrect event. Corrected Filing Document Number 270 Modified filing date to that of original filing: 7/22/2014 (gpre, ) (Entered: 07/24/2014)
272 DECLARATION by Peter Bre 262 Order,,,,, Response to Order re Representation 262 . (Attachments: # 1 Exhibit Petition of Carolyn Brown requesting appointment of Sandra Ray as Guardian Ad Litem, # 2 Exhibit Affidavit of Guardian Ad Litem Sandra K. Ray, PhD)(Harrison, Patricia) (Entered: 07/24/2014)
273 Consent MOTION for Extension of Time by Beverly Buscemi, Kelly Floyd, Richard Huntress, Anthony Keck, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The. Response to Motion due by 8/15/2014. No proposed order.(Woodington, Kenneth) (Entered: 07/29/2014)
275 TEXT ORDER granting 273 Motion for Extension of Time to reply to plaintiffs' response to defendants' motion to dismiss on mootness grounds. Reply due August 22, 2014. Signed by Honorable Timothy M Cain on 7/29/2014.(gpre, ) (Entered: 07/29/2014)

Case: 6:10-cv-767 As of: 03/03/2020 10:54 AM EST 25 of 30

08/15/2014
08/22/2014 08/22/2014 08/22/2014 09/05/2014 09/07/2014 09/08/2014 09/09/2014 09/09/2014 09/09/2014 09/19/2014
09/20/2014

276 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings. Status Conference held on 7/10/14, before Judge Timothy M. Cain. Court Reporter Karen E. Martin, Telephone number/E−mail 864.201.8411, Karen_E_Martin@scd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained from the court reporter or through PACER. Parties have 7 calendar days from the filing of the transcript to file with the court a Notice of Intent to Request Redaction. Redaction Request due 9/5/2014. Redacted Transcript Deadline set for 9/15/2014. Release of Transcript Restriction set for 11/13/2014. (kmartin) (Entered: 08/15/2014)
277 REPLY to Response to Motion re 256 MOTION to Dismiss (mootness) Response filed by Beverly Buscemi, Kelly Floyd, Richard Huntress, Anthony Keck, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The. (Attachments: # 1 Exhibit Bernard Affidavit, # 2 Exhibit Orner Affidavit)(Woodington, Kenneth) (Entered: 08/22/2014)
278 CERTIFICATE OF SERVICE by Beverly Buscemi, Richard Huntress, Anthony Keck, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The re 277 Reply to Response to Motion, (Woodington, Kenneth) (Entered: 08/22/2014)
279 NOTICE of Intent to Request Redaction by Patricia L Harrison re 276 Transcript,, (Harrison, Patricia) (Entered: 08/22/2014)
280 MOTION to Redact 276 Transcript,, by Peter B, Jimmy Chip E. Response to Motion due by 9/22/2014. (Attachments: # 1 Exhibit Declaration of Sandra K. Ray, Sep. 5, 2014)No proposed order.(Harrison, Patricia) (Entered: 09/05/2014)
281 DECLARATION by Peter B, Jimmy Chip Ere 280 MOTION to Redact 276 Transcript,, Declaration of Sandra Kerr Ray. (Harrison, Patricia)# 1 Declaration of Sandra Kerr Ray) (gpre, ). Modified on 9/9/2014 to replace main document with correct signature as provided by filing user (gpre, ). (Entered: 09/07/2014)
282 CERTIFICATE OF SERVICE by Peter B, Jimmy Chip E to Carolyn B. Brown (Harrison, Patricia) Modified on 9/10/2014 to replace corrected document as provided by filing user (gpre, ). (Entered: 09/08/2014)
283 REPLY by Beverly Buscemi, Kelly Floyd, Richard Huntress, Anthony Keck, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The to 281 Declaration of Sandra Ray. (Woodington, Kenneth) (Entered: 09/09/2014)
284 RESPONSE in Opposition re 280 MOTION to Redact 276 Transcript,, Response filed by Beverly Buscemi, Kelly Floyd, Richard Huntress, Anthony Keck, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The.Reply to Response to Motion due by 9/19/2014 (Woodington, Kenneth) (Entered: 09/09/2014)
285 CERTIFICATE OF SERVICE by Beverly Buscemi, Kelly Floyd, Richard Huntress, Anthony Keck, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The re 280 MOTION to Redact 276 Transcript,, , 281 Declaration (Woodington, Kenneth) (Entered: 09/09/2014)
286 MOTION to Withdraw 284 Response in Opposition to Motion, Motion to Withdraw and to Bifurcate the Claims of Chip E. from the Claims of Peter B. by Peter B, Jimmy Chip E. Response to Motion due by 10/6/2014. (Attachments: # 1 Exhibit Affidavit of Patricia Logan Harrison, # 2 Exhibit Letter from Carolyn Brown to Patricia Harrison dated September 18, 2014)No proposed order.(Harrison, Patricia) (Entered: 09/19/2014)
287 CERTIFICATE OF SERVICE by Peter B, Jimmy Chip E re 286 MOTION to Withdraw 284 Response in Opposition to Motion, Motion to Withdraw and to Bifurcate the Claims of Chip E. from the Claims of Peter B. 286 Mailed to Carolyn B. Brown (Harrison, Patricia) (Entered: 09/20/2014)

Case: 6:10-cv-767 As of: 03/03/2020 10:54 AM EST 26 of 30

09/22/2014 09/22/2014 09/23/2014 09/29/2014
09/29/2014 10/06/2014
10/06/2014 10/16/2014
10/21/2014 10/27/2014 10/31/2014
11/24/2014 11/25/2014

288 NOTICE of Request for Protection from Court Appearance by Patricia L Harrison for 9/30/14 − 10/6/14 (Harrison, Patricia) (Entered: 09/22/2014)
290 Letter from Carolyn Brown regarding responding to motions filed in recent days. Letter was mailed to Judge Cain in Anderson. Clerk spoke to Mrs. Brown and informed her that anything she wants filed must be sent to the Clerk's Office in Greenville. (gpre, ) (Entered: 09/23/2014)
289 CERTIFICATE OF SERVICE by Peter B, Jimmy Chip E Mailing of 288 to Carolyn B. Brown (Harrison, Patricia) (Entered: 09/23/2014)
291 RESPONSE in Support re 286 MOTION to Withdraw 284 Response in Opposition to Motion, Motion to Withdraw and to Bifurcate the Claims of Chip E. from the Claims of Peter B. Response filed by Carolyn Bearden Brown. (Attachments: # 1 Affidavit of Charles K. Brown Jr., # 2 Exhibit 1 − Plan of Service, # 3 Exhibit 2 − Transcript page 38, # 4 Exhibit 3 − News Tag 5/18/12, # 5 Exhibit 4 − Email from Attorney Harrison, # 6 Exhibit 5 − Attorney Woodington's Response to Motion, # 7 Exhibit 6 − Plaintiff's Response to Motion to Dismiss, # 8 Certificate of Service, # 9 Envelope)(gpre, ) (Entered: 09/30/2014)
292 RESPONSE in Opposition re 280 MOTION to Redact 276 Transcript,, Response filed by Carolyn Bearden Brown.Reply to Response to Motion due by 10/9/2014 (Attachments: # 1 Envelope)(gpre, ) (Entered: 09/30/2014)
293 RESPONSE to Motion re 286 MOTION to Withdraw 284 Response in Opposition to Motion, Motion to Withdraw and to Bifurcate the Claims of Chip E. from the Claims of Peter B. Response filed by Beverly Buscemi, Kelly Floyd, Richard Huntress, Anthony Keck, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The.Reply to Response to Motion due by 10/17/2014 (Woodington, Kenneth) (Entered: 10/06/2014)
294 CERTIFICATE OF SERVICE by Beverly Buscemi, Kelly Floyd, Richard Huntress, Anthony Keck, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The re 293 Response to Motion, (Woodington, Kenneth) (Entered: 10/06/2014)
296 REPLY INCLUDING VIOLATIONS OF JUDGE CHILDS' ORDER TO DEFENDANTS' MOTON TO DISMISS, to Response to Motion re 286 MOTION to Withdraw 284 Response in Opposition to Motion, Motion to Withdraw and to Bifurcate the Claims of Chip E. from the Claims of Peter B. Response filed by Carolyn Bearden Brown. (Attachments: # 1 Exhibit 1−Envelope to Ms. Brown, # 2 Exhibit 2−Letter from physician, # 3 Exhibit−Response to Atty Harrison, # 4 Exhibits 4,5,6 on file in this case, # 5 Exhibit 7−Correspondence, # 6 Exhibit 8−SC Court of Appeals Order, # 7 Certificates of Service, # 8 Envelope)(gpre, ) Additional attachment 298 added on 10/27/2014 (gpre, ). (Entered: 10/16/2014)
297 TEXT ORDER granting 251 Motion to Amend/Correct Status Report. Signed by Honorable Timothy M. Cain on 10/21/2014.(vmcd, ) (Entered: 10/21/2014)
298 Additional Attachments to Main Document 296 Reply to Response to Motion. First attachment description: William M. Baker Ph.D Evaluation. (Attachments: # 1 Evaluation, # 2 Envelope)(gpre, ) (Entered: 10/27/2014)
299 MOTION File response to guardian's filings re 256 MOTION to Dismiss (mootness) by Beverly Buscemi, Kelly Floyd, Richard Huntress, Anthony Keck, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The. Response to Motion due by 11/17/2014. (Attachments: # 1 Certificate of Service)No proposed order.(Woodington, Kenneth) (Entered: 10/31/2014)
300 TEXT ORDER denying 299 Motion. At this time, the court does not believe it is necessary for Defendants to file any response. Signed by Honorable Timothy M. Cain on 11/24/2014.(vmcd) (Entered: 11/24/2014)
301 ***DOCUMENT MAILED 300 Order on Motion for Miscellaneous Relief placed in U.S. Mail to Carolyn Brown (gpre, ) (Entered: 11/25/2014)

Case: 6:10-cv-767 As of: 03/03/2020 10:54 AM EST 27 of 30

12/10/2014
12/10/2014 12/10/2014 12/17/2014 12/29/2014 12/29/2014 12/29/2014 01/08/2015
01/08/2015 01/08/2015 02/02/2015
02/04/2015 02/06/2015

302 ORDER granting 256 Motion to Dismiss; denying 280 Motion to Redact 276 Transcript; granting in part and denying in part 286 Motion to Withdraw. Attorney Patricia Harrison is terminated as to Peter B. Plaintiffs Motion to Bifurcate 286 is denied as it is now moot. The court specifically advises Brown that she cannot represent Plaintiff in this or any future litigation. Signed by Honorable Timothy M Cain on 12/10/2014.(gpre, ) (Entered: 12/10/2014)
303 JUDGMENT that case is dismissed. (gpre, ) (Entered: 12/10/2014)
304 ***DOCUMENT MAILED 303 Judgment, 302 Order on Motion to Dismiss, Order on Motion to Redact Transcript, Order on Motion to Withdraw,,, placed in U.S. Mail to Carolyn Brown (gpre, ) (Entered: 12/10/2014)
306 ***DOCUMENT MAILED 303 Judgment, 302 Order on Motion to Dismiss, Order on Motion to Redact Transcript, Order on Motion to Withdraw, placed in U.S. Mail to Carolyn Brown. (gpre, ) (Entered: 12/17/2014)
307 Mail Returned as Undeliverable. Addressee: Carolyn Brown. Document Returned: 303 Judgment, 302 Order on Motion to Dismiss, to Redact Transcript, to Withdraw, mailed on December 17, 2014. (gpre, ) Modified on 12/29/2014to edit text (gpre, ). (Entered: 12/29/2014)
308 Mail Returned as Undeliverable. Addressee: Carolyn Brown. Document Returned: 303 Judgment, 302 Order on Motion to Dismiss, to Redact Transcript, to Withdraw, mailed December 10, 2014. (gpre, ) (Entered: 12/29/2014)
309 ADDRESS CORRECTED***DOCUMENTS MAILED 303 Judgment, 302 Order on Motion to Dismiss, to Redact Transcript, to Withdraw, placed in U.S. Mail to Carolyn Brown. (gpre, ) (Entered: 12/29/2014)
310 NOTICE OF APPEAL as to 303 Judgment, 193 Order on Motion for Reconsideration, 93 Order Ruling on Report and Recommendation,, 231 Order on Motion to Dismiss, Order on Motion for Summary Judgment,,,,,, 185 Order on Motion for Summary Judgment, 302 Order on Motion to Dismiss, Order on Motion to Redact Transcript, Order on Motion to Withdraw,,, by Jimmy Chip E. − The Docketing Statement form, Transcript Order form and CJA 24 form may be obtained from the Fourth Circuit website at www.ca4.uscourts.gov (Harrison, Patricia) (Entered: 01/08/2015)
311 MOTION for Leave to Proceed in forma pauperis (Restricted Access) by Jimmy Chip E. Response to Motion due by 1/26/2015. # 1 Application to Proceed IFP). No proposed order. (Harrison, Patricia). Modified on 1/30/2015 to replace correct main document as provided by filing user (gpre, ). (Entered: 01/08/2015)
312 Transmittal Sheet for Notice of Appeal to USCA re 310 Notice of Appeal,, The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. (gpre, ) (Entered: 01/08/2015)
316 TEXT ORDER denying 311 Motion for Leave to Proceed in forma pauperis. Plaintiff has filed a motion to proceed in forma pauperis on appeal. Federal Rules of Appellate Procedure 24 (a) provides that a party may file such a motion with the district court and "must attach an affidavit that: A) shows in the detail prescribed by Form 4 of the Appendix of Forms the party's inability to pay or to give security for fees and costs; B) claims an entitlement to redress; and C) states the issues that the party intends to present on appeal." Fed.R.App.P. 24 (a)(1). Plaintiff has not attached the proper affidavit which prevents this court from making the necessary determinations. Accordingly, Plaintiff's motion is denied with leave to refile. Signed by Honorable Timothy M Cain on 2/2/2015.(vmcd, ) (Entered: 02/02/2015)
319 MOTION for Leave to Proceed in forma pauperis (Restricted Access) by Jimmy Chip E. Response to Motion due by 2/23/2015. (Attachments: # 1 Exhibit Form AO 240, # 2 Exhibit Affidavit of Jimmy "Chip' E)No proposed order.(Harrison, Patricia) Modified on 2/6/2015 to correct date filed (gpre, ). (Entered: 02/05/2015)
320 DELETION OF DOCKET ENTRY NUMBER 317 Reason: Declaration correctly refiled as an attachment to a motion. Corrected Filing Document Number 319 Modified filing date to that of original filing: 2/4/2015. (gpre, ) (Entered: 02/06/2015)

Case: 6:10-cv-767 As of: 03/03/2020 10:54 AM EST 28 of 30

02/09/2015
02/16/2015 02/17/2015 04/29/2016 09/15/2016 02/13/2017 04/24/2017 05/01/2017
05/04/2017
05/04/2017 06/01/2017

321 ORDER re 319 MOTION for Leave to Proceed in forma pauperis (Restricted Access) filed by Jimmy Chip E. Plaintiff shall have ten days from the date of this Order to supplement the Motion by filing a completed and executed affidavit in proper form which sets forth the issues Plaintiff intends to present on appeal. Failure to comply with the requirements of Fed. R. App. P. 24 and this Order may be deemed a waiver of the request to proceed in forma pauperis and result in the denial of the Motion. IT IS SO ORDERED. Signed by Honorable Timothy M Cain on 2/9/15. (alew, ) (Entered: 02/09/2015)
323 MOTION for Leave to Proceed in forma pauperis (Restricted Access) by Jimmy Chip E. Response to Motion due by 3/5/2015. (Attachments: # 1 Exhibit Application to Appeal In Forma Pauperis, # 2 Exhibit Affidavit of Jimmy "Chip' E 4Feb15)No proposed order.(Harrison, Patricia) (Entered: 02/16/2015)
324 TEXT ORDER granting 323 Motion for Leave to Proceed in forma pauperis.Signed by Honorable Timothy M. Cain on 2/17/2015.(vmcd) (Entered: 02/17/2015)
327 USCA OPINION for 310 Notice of Appeal, filed by Jimmy Chip E. Decision of Appeals Court Affirmed Decision of District Court. (kmca) (Entered: 04/29/2016)
330 USCA MANDATE and Judgment as to 310 Notice of Appeal, filed by Jimmy Chip E. (Attachments: # 1 Judgment)(kmca) (Entered: 09/15/2016)
331 Appeal Remark re 310 Notice of Appeal: A petition for a writ of certiorari re 4CCA #15−1039 was filed on 12/6/16 and placed on the docket 2/10/17 as No. 16−7907. (kmca) (Entered: 02/13/2017)
332 Appeal Remark from Supreme Court of the United States re 310 Notice of Appeal: the petition for a writ of certiorari is denied. (kmca) (Entered: 04/24/2017)
333 MOTION for Attorney Fees and GAL fees filed by GAL for Michelle M. and Peter B. and by Chip E., MOTION for Hearing by Peter B, Jimmy Chip E, Michelle M. Response to Motion due by 5/15/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Exhibit Declaration of Patricia Logan Harrison, # 2 Exhibit Affidavit of Attorney Lynn Carman, # 3 Exhibit Declaration of GAL, # 4 Exhibit Affidavit of Attorney Franchelle Millender, # 5 Exhibit Declaration of Attorney Richard Harpootlian, # 6 Exhibit Affidavit of Attorney Nancy McCormick, # 7 Exhibit Affidavit of Attorney David Summer, # 8 Exhibit Affidavit of Attorney Sarah St. Onge)No proposed order.(Harrison, Patricia). Added MOTION for Hearing on 5/2/2017: to add additional relief listed on document (kmca). (Entered: 05/01/2017)
334 Consent MOTION for Extension of Time to File Response/Reply as to 333 MOTION for Attorney Fees and GAL fees filed by GAL for Michelle M. and Peter B. and by Chip E. MOTION for Hearing by Beverly Buscemi, Kelly Floyd, Richard Huntress, Anthony Keck, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The. Response to Motion due by 5/18/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Davidson, William) Modified on 5/4/2017: to add "consent" (kmca). (Entered: 05/04/2017)
335 TEXT ORDER granting 334 Motion for Extension of Time to File Response/Reply re 333 MOTION for Attorney Fees and GAL fees filed by GAL for Michelle M. and Peter B. and by Chip E., MOTION for Hearing. (Response to 333 Motion due by 6/14/2017.) Entered at the direction of the Honorable Timothy M Cain on 5/4/17.(kmca) (Entered: 05/04/2017)
336 MOTION to Strike or MOTION to Dismiss Plaintiffs' 333 MOTION for Attorney Fees and GAL fees filed by GAL for Michelle M. and Peter B. and by Chip E., MOTION for Hearing. Filed by Beverly Buscemi, Kelly Floyd, Emma Forkner, Nikki Randhawa Haley, Richard Huntress, Anthony Keck, Marshall C Sanford, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The. Response to Motion due by 6/15/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Memo in Support)No proposed order.(Woodington, Kenneth). Added MOTION to Dismiss on 6/2/2017: to include additional motion relief listed on document (kmca). (Entered: 06/01/2017)

Case: 6:10-cv-767 As of: 03/03/2020 10:54 AM EST 29 of 30

06/01/2017 06/08/2017

337 MOTION to Stay re 333 MOTION for Attorney Fees, MOTION for Hearing by Beverly Buscemi, Kelly Floyd, Emma Forkner, Nikki Randhawa Haley, Richard Huntress, Anthony Keck, Marshall C Sanford, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The. Response to Motion due by 6/15/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Woodington, Kenneth) Modified on 6/2/2017: to correct linkage as reflected on document (kmca). (Entered: 06/01/2017)
338 TEXT ORDER. Plaintiff has filed 333 motion for attorney fees and Guardian ad Litem fees. The court granted 335 consent motion extending the deadline for filing a response to June 14, 2017. Defendants thereafter filed 336 motion to strike Plaintiff's motion to dismiss which asserts that as a threshold matter, the Plaintiff's 333 motion is untimely and therefore barred. Defendants also filed 337 motion to stay the deadline to fully respond to the Plaintiff's motion for fees pending a ruling on the motion to strike. Responses to these motions are due by June 15, 2017.

The 337 motion to stay is granted in part, such that the deadline for filing a full response to the 333 motion for fees shall be stayed pending the filing of responses by the Plaintiff and further order of the court. By entry of this order, the court expresses no opinion as to the merits of the motion for fees or the motion to dismiss. Entered at the direction of the Honorable Timothy M Cain on 6/8/17.(kmca, )

06/14/2017 06/14/2017 06/29/2017
07/05/2017
07/28/2017 08/28/2017

(Entered: 06/08/2017)
339 First MOTION for Extension of Time to File Response/Reply as to 336 MOTION to Strike 333 MOTION for Attorney Fees and GAL fees filed by GAL for Michelle M. and Peter B. and by Chip E. MOTION for Hearing MOTION to Dismiss by Jimmy Chip E, Michelle M. Response to Motion due by 6/28/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Harrison, Patricia) Modified on 6/14/2017 to edit text (alew, ). (Entered: 06/14/2017)
340 TEXT ORDER granting 339 Consent Motion for Extension of Time to File Response/Reply. Plaintiff shall have until June 29, 2017, to file a response to Defendants' Motion to Strike (ECF No. 336). Signed by Honorable Timothy M. Cain on 6/14/2017.(vmcd, ) (Entered: 06/14/2017)
343 RESPONSE in Opposition re 336 MOTION to Strike 333 MOTION for Attorney Fees and GAL fees filed by GAL for Michelle M. and Peter B. and by Chip E. MOTION for Hearing MOTION to Dismiss Response filed by Jimmy Chip E, Michelle M.Reply to Response to Motion due by 7/6/2017 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Attachments: # 1 Exhibit Ex1 Complaint, # 2 Exhibit Ex 2 Response to Complaint, # 3 Exhibit Ex 3 Dismissal of Complaint, # 4 Exhibit Ex 4 Email from Case Manager Increasing Hours 10−27−16, # 5 Exhibit Ex 5 Hilton Groups v. BB&TSC)(Harrison, Patricia) (Entered: 06/29/2017)
345 REPLY to Response to Motion re 336 MOTION to Strike or MOTION to Dismiss Plaintiffs' 333 MOTION for Attorney Fees and GAL fees filed by GAL for Michelle M. and Peter B. and by Chip E., MOTION for Hearing. Response filed by Beverly Buscemi, Kelly Floyd, Emma Forkner, Nikki Randhawa Haley, Richard Huntress, Anthony Keck, Marshall C Sanford, South Carolina Department of Disabilities and Special Needs, The, South Carolina Department of Health and Human Services, The. (Woodington, Kenneth) Modified on 7/5/2017: to edit text (kmca). (Entered: 07/05/2017)
346 ORDER granting Defendants' 336 Motion to Dismiss and denying Plaintiff's 333 Motion for Attorney Fees. Signed by Honorable Timothy M Cain on 7/28/17.(kmca) (Entered: 07/28/2017)
347 NOTICE OF APPEAL as to 346 Order on Motion for Attorney Fees, Order on Motion for Hearing, Order on Motion to Strike, Order on Motion to Dismiss by Jimmy Chip E. − The Docketing Statement form, Transcript Order form and CJA 24 form may be obtained from the Fourth Circuit website at www.ca4.uscourts.gov (Harrison, Patricia) (Entered: 08/28/2017)

Case: 6:10-cv-767 As of: 03/03/2020 10:54 AM EST 30 of 30

08/28/2017
08/29/2017 08/29/2017 09/05/2017 06/19/2018 07/05/2018 08/14/2018 08/22/2018

348 MOTION for Leave to Proceed in forma pauperis on Appeal (Restricted Access) by Jimmy Chip E. Response to Motion due by 9/11/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Exhibit Affidavit of jimmy "Chip" E 8−27−17, # 2 Exhibit 2015 Affidavit, # 3 Exhibit 2015 Order granting motion to proceed in forma pauperis 324 )No proposed order.(Harrison, Patricia) (Main Document and Attachment 1 replaced on 9/5/2017: to replace with corrected documents as provided by filing user) (kmca). (Entered: 08/28/2017)
349 Transmittal Sheet for Notice of Appeal to USCA re 347 Notice of Appeal. The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. (kmca) (Entered: 08/29/2017)
350 MOTION TO APPEAL IN FORMA PAUPERIS UNDER REVIEW BY DISTRICT COURT re 347 Notice of Appeal. (kmca) (Entered: 08/30/2017)
353 TEXT ORDER granting 348 Motion for Leave to Appeal in forma pauperis on Appeal. Entered at the direction of the Honorable Timothy M Cain on 9/5/17.(kmca) (Entered: 09/05/2017)
355 USCA OPINION for 347 Notice of Appeal, filed by Jimmy Chip E. Decision of Appeals Court Affirmed Decision of District Court. (kmca) (Entered: 06/19/2018)
356 Appeal Remark re 347 Notice of Appeal: Mandate stayed per Fed. R. App. P. 41(d)(1), petition for rehearing. (kmca) (Entered: 07/05/2018)
357 Appeal Remark re 347 Notice of Appeal: COURT ORDER filed denying Motion for rehearing en banc. (kmca) (Entered: 08/14/2018)
358 USCA MANDATE and Judgment as to 347 Notice of Appeal, filed by Jimmy Chip E. (Attachments: # 1 Judgment)(kmca) (Entered: 08/22/2018)