In South Carolina, people with disabilities sue state over cuts to home care

From The Greenville News in S.C.:

Lawyers for a group of disabled people are suing the state over its move to cut benefits for those who rely on government-funded home care, a decision they say violates the patients' civil rights and threatens to force people into institutions who don't belong in them.

On Tuesday, lawyers for the group and for the state will argue in U.S. District Court in Greenville over whether a preliminary injunction should be granted preventing state agencies from limiting the federal Medicaid funding the patients receive for community-based care.

The agencies responsible for administering the care - the Department of Health and Human Services and the Department of Disabilities and Special Needs - argue that tough economic times require cuts in services and that other options to prevent institutionalization are available.

Gov. Mark Sanford has also been sued, but he has argued that he doesn't have direct control over the allocation of funds.

In court filings, the three Upstate plaintiffs allege that the DDSN claimed to suffer budget shortfalls but in fact had a $7.8 million "excess funds" account and used $2.6 million to buy real estate for support agencies in West Columbia and in Beaufort and Horry counties.

In addition, plaintiffs' attorney Patricia Harrison argues in court filings that talks about cutting services first occurred in 2008, when a budget crisis existed.

However, the federal government in February 2009 provided more than $195 million in stimulus funding to prop up Medicaid services, Harrison wrote, and when the decision to cut home-care services was made the DDSN was holding $34 million in stimulus funds and paid $30 million of it into a "rainy day" fund."

Also, Harrison wrote, the cost of providing home care to disabled people costs less than putting their care in the hands of an institution - $320 per day in an institution, $138 per day for home care.

The cuts - which are manifested in the form of a cap on the number of hours of home care a person can receive - will result in four times the amount of home-care patients being admitted into institutions, she wrote.

A lawyer for the state agencies, Kenneth Woodington, told a judge in court filings that lawyers didn't intend to file a response to the plaintiffs' "vast majority of new claims" but would do so if the judge wanted in relation to the injunction.

U.S. Magistrate Bruce Hendricks ordered that the hearing should particularly focus on whether the plaintiffs could suffer irreparable harm if services are cut.

One man in the original complaint against the agencies suffers from cerebral palsy and can only move by way of a wheelchair operated by his mouth, according to court filings.

On a given day, it can take from 8 a.m. until noon to get him out of bed, groomed and prepared to move, according to court filings.

The federal government's Medicaid program allows for a waiver so that funds that would have been used to care for a disabled person in an institution can be applied to caring for the person in a home or community setting, according to court filings.

The state is responsible for determining, through medical professionals, whether a person would benefit more from being cared for from home, according to filings.

A cut in services, Harrison wrote in her motion, would likely have the man leave behind a life as a productive member of the community and instead have him "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."

The man "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," Harrison wrote.

The services the man has been receiving during 2010 cost about $39,424, Harrison wrote, while institution-based services would cost about $116,000 a year.

In another case, a woman suffering from severe mental retardation is unable to speak and is subject to outbursts that put pressure on caregivers who aren't accustomed to her behavior, Harrison wrote.

The woman was once housed in an institution in Laurens County but was removed after she received unexplainable physical injuries, Harrison wrote.

The federal government's American with Disabilities Act requires that disabled people not be discriminated against and segregated from society, Harrison wrote.

"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," she wrote.

Attorneys for the agencies argue that the plaintiffs haven't proven that they would have to enter institutions with some cuts in their home services and in fact have other options they haven't explored.

"These plaintiffs argue that if they are not offered the richest items on the menu, they will starve," Woodington wrote. "In fact, however, there are many other possible services that could fill any gaps left by the reductions in their services, which are relatively minor in any event."

In court filings, Woodington argues that states are in compliance with the ADA if individual considerations could hurt the care of a larger population.

"The immediate relief for the plaintiffs would be inequitable," he wrote, "given the responsibility the state has undertaken for the care and treatment of a large and diverse population of persons with mental disabilities."