Doe v. Kidd

Decision Date19 September 2007
Docket NumberNo. 05-1570.,05-1570.
PartiesSue DOE, Plaintiff-Appellant, v. Linda KIDD; Stan Butkus; Kathi Lacy; South Carolina Department of Disabilities and Special Needs; Robert Kerr; South Carolina Department of Health and Human Services, Defendants-Appellees.
CourtU.S. Court of Appeals — Fourth Circuit

& Lindemann, P.A., Columbia, South Carolina, for Appellees. ON BRIEF: William H. Davidson, II, Davidson, Morrison & Lindemann, P.A., Columbia, South Carolina, for Appellees.

Before KING and GREGORY, Circuit Judges, and FRANK D. WHITNEY, United States District Judge for the Western District of North Carolina, sitting by designation.

Affirmed in part, vacated in part, and remanded by published opinion. Judge GREGORY wrote the opinion, in which Judge KING concurred. Judge WHITNEY wrote a separate opinion concurring in the judgment in part and dissenting in part.

OPINION

GREGORY, Circuit Judge:

Sue Doe, who has developmental disabilities including epilepsy, mild mental retardation, and cerebral palsy, filed this action concerning her application for Medicaid services from the state of South Carolina. The district court granted summary judgment to Appellees: the South Carolina Department of Disabilities and Special Needs, the South Carolina Department of Health and Human Services, and various officials at the helm of the two departments. Because Doe's two claims on appeal are not, as the district court found, moot, but one of her claims nonetheless fails as a matter of law, we affirm in part and vacate and remand in part.

I.

Medicaid is an optional, federal-state program through which the federal government provides financial assistance to states for the medical care of needy individuals. Wilder v. Va. Hosp. Ass'n, 496 U.S. 498, 502, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990). Once a state elects to participate in the program, it must comply with all federal Medicaid laws and regulations. Id. The South Carolina Department of Health and Human Services ("DHHS") is the state agency responsible for administering and supervising Medicaid programs in South Carolina. The South Carolina Department of Disabilities and Special Needs ("DDSN") has specific authority over the state's treatment and training programs for people with mental retardation and related disabilities.

This case involves the Medicaid waiver program created by 42 U.S.C. § 1396n(c) (2000), which permits states to waive the requirement that persons with mental retardation or a related disability live in an institution in order to receive certain Medicaid services. See generally Bryson v. Shumway, 308 F.3d 79, 82 (1st Cir.2002) ("[The program] allow[s] states to experiment with methods of care, or to provide care on a targeted basis, without adhering to the strict mandates of the Medicaid system."). When an individual in South 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 requires. To be given the option under the waiver program of receiving services at home or in the community, rather than in an institution, individuals must first qualify for the Intermediate 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 services are provided in a variety of settings including, in order of restrictiveness: (1) a Supervised Living Program II ("SLP II"), an apartment where recipients of DDSN services live together; (2) a Community Training Home I ("CTH I"), a private foster home where a recipient of DDSN services resides with a family, one member of whom is a trained caregiver; and (3) a Community Training Home II ("CTH II"), a group home with live-in caregivers for four or fewer recipients of DDSN services. Appeals from DDSN decisions about the services, if any, it will provide are taken to a DHHS hearing officer and, after that, to the state of South Carolina's Administrative Law Judge Division.

Doe applied for services under DDSN's waiver program in July 2002, after previous requests for DDSN services had been denied in 2000 and 2001. In December 2002, without making a determination as to Doe's eligibility for the waiver program, DDSN placed Doe on the non-critical waiting list for the program. Doe appealed this decision to DHHS, adding a claim that DDSN failed to serve her within a reasonable amount of time as required by federal regulations. While the appeal was pending, DDSN moved Doe to the top of the critical waiting list for the program and developed a plan of care for her, which largely involved her living at home with her mother where she would receive various in-home services. DDSN then moved to dismiss Doe's appeal.

At the March 2003 hearing on DDSN's motion to dismiss, Doe conceded that DDSN had moved her to the top of the critical waiting list and had found her eligible for services under the waiver program earlier that month. Finding that all the appealed issues had already been resolved in Doe's favor, the DHHS hearing officer dismissed Doe's appeal. Doe did not appeal the dismissal to the state's Administrative Law Judge Division. At the end of March, however, Doe learned that she had been terminated from the waiver program. She requested a hearing on this decision and, several months later, learned that her Medicaid eligibility was to terminate as well (although it never did).

During May and June of 2003, Doe requested another hearing on the grounds that she had not yet received the services promised by DDSN in her plan of care. DDSN protested that Doe's family was not cooperating in availing themselves of those services. The DHHS hearing officer held Doe's request for an appeal in abeyance because he considered Doe's Medicaid eligibility to be in question. Doe had also demanded immediate CTH I or CTH II residential placement (rather than continued in-home services), with a provider of her choice, because her mother, whose mental health was rapidly declining, was no longer able to care for her and was moving out of state without Doe. Doe voiced her opposition to DDSN's chosen provider for residential services, the Babcock Center, based on reports that the center had a history of abusing and neglecting residents. In response to Doe's petitions, DDSN requested proof of her critical family circumstances before taking action.

On June 9, 2003, Doe filed this action, alleging violations of the Medicaid Act, 42 U.S.C. §§ 1396-1396v, the Americans with Disabilities Act of 1990, Pub.L. No. 101-336, 104 Stat. 327 (codified as amended in scattered sections of 42 U.S.C.), and various state laws. Only two of Doe's original seven claims are at issue here: (1) a claim under 42 U.S.C. § 1983 that Appellees "have deprived Doe of Medicaid services— namely, residential habilitation services and freedom of choice of providers of those services" and (2) a claim that Appellees have "failed to provide with reasonable promptness the residential habilitation and other Medicaid services Doe has requested since 2000" in violation of § 1396a(a)(8) of the Medicaid Act. Doe sought an order directing DDSN to provide her with residential habilitation services from the provider of her choice, payment of her medical expenses, and fees and costs.

On July 2, 2003, Doe filed a motion for a preliminary injunction seeking relief substantially similar to that requested in her complaint. Doe's mother had by then left South Carolina, and her father was unable to take her into his home. Accordingly, shortly after the hearing on the motion for a preliminary injunction, DDSN placed Doe in a CTH II (group home) facility in Newberry, South Carolina, where she received respite (or temporary) services. DDSN maintains that it did so because of Doe's family circumstances, not because she was qualified for that most-restrictive setting; in fact, DDSN found Doe to need a CTH I (foster home) or SLP II (apartment) setting. Doe continues to reside at the Newberry facility. In light of Doe's placement at Newberry, the district court denied Doe's motion for preliminary injunctive relief.

Appellees then moved for summary judgment. At a hearing on the motion in September 2004, Doe explained that she had consistently requested CTH II residential habilitation services in her home community, near Columbia, South Carolina. Doe explained that she could not avail herself of these providers until DDSN approved the placement, yet DDSN would only approve a CTH I placement. Doe further explained that, although DDSN ultimately found her eligible for the waiver program and is now providing her with CTH II residential services, DDSN considers Doe's current CTH II placement at Newberry temporary and has acknowledged that Doe may be moved out of residential facilities altogether depending on the setting DDSN ultimately finds her to require. Doe therefore argued against summary judgment on the grounds that she has never received the residential services she requested by the provider she chose, nor a fair hearing on the merits, and that she is being threatened with termination of services altogether. Doe admitted at the hearing that she had already prevailed on three causes of action in her complaint.

On December 9, 2004, the district court dismissed as moot three of Doe's causes of action—including the two on appeal here— on the grounds that at the hearing on the motion for summary judgment, Doe admitted that she had already received the relief requested in those counts. The district court granted summary judgment to Appellees on Doe's remaining four counts and denied her request for attorney's fees and...

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