Kobe v. McMaster

• Decision Date: 30 March 2018
• Docket Number: C/A No. 3:11-1146-MBS
• Parties: Kobe, Mark, Plaintiffs, v. Henry McMaster, in his capacity as Governor of the State of South Carolina, et al., Defendants.
• Court: U.S. District Court — District of South Carolina

Kobe, Mark,¹Plaintiffs, v. Henry McMaster, in his capacity as Governor² of the State of South Carolina, et al., Defendants.

C/A No. 3:11-1146-MBS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION

March 30, 2018

ORDER AND OPINION

Plaintiffs Kobe and Mark filed a complaint on May 11, 2011, and an amended complaint on October 18, 2011.Plaintiffs alleged the following causes of action: Violation of the Americans With Disabilities Act(Count One); Violation of Section 504 of the Rehabilitation Act(Count Two); violation of 42 U.S.C. § 1983(Count Three);Violation of42 U.S.C. §§ 1983 and 1988(violation of civil rights)(Count Four);Violation of42 U.S.C. § 1985(3)(conspiracy)(Count Five); Violation of the Supremacy Clause (Count Six); and Violation of RICO(Count Seven).³The case originally was assigned to the Honorable J. Michelle Childs.It was reassigned to the Honorable Timothy M. Cain on October 18, 2011.

On August 10, 2012, the Honorable Timothy M. Cain dismissed DefendantsNikki Haley, in her official capacity as Governor and Chairman of the South Carolina Budget and Control Board;⁴Curtis Loftis and Brian White, as members of the South Carolina Budget and Control Board; and Daniel Cooper and Converse Chellis, in their capacities as former members of the South Carolina Budget and Control Board, on the grounds of Eleventh Amendment immunity as to claims asserted against them in their official capacities.He determined none of them had a special connection to the administration of the state's Medicaid program such than an injunction against them would provide any redress.Judge Cain also found that, to the extent Defendants Cooper and Chellis were sued in their individual capacities, these Defendants had no authority to provide prospective injunctive relief.Judge Cain also determined that Defendants Cooper and Chellis were entitled to legislative immunity.ECF No. 135.On August 12, 2013, Judge Cain dismissed DefendantsHugh Leatherman and Richard Eckstrom, in their capacities as members of the South Carolina Budget and Control Board, on the grounds of Eleventh Amendment immunity and legislative immunity.ECF No. 217.

On July 7, 2014, the within action was reassigned to the undersigned.Remaining in the case were Plaintiffs Kobe and Mark, as well as DefendantsAnthony Keck, in his capacity as the Director of the South Carolina Department of Health and Human Services; Emma Forkner, in hercapacity as the former Director of the South Carolina Department of Health and Human Services; Beverly Buscemi, in her capacity as Director of the South Carolina Department of Disabilities and Special Needs; Eugene A. Laurent, former Interim Director of the South Carolina Department of Disabilities and Special Needs; Stanley Butkus, former Director of the South Carolina Department of Disabilities and Special Needs; Richard Huntress, in his capacity as Commissioner of the South Carolina Department of Disabilities and Special Needs; Kathi Lacy, Thomas P. Waring and Jacob Chorey, in their capacities as employees of the South Carolina Department of Disabilities and Special Needs; Mary Leitner, in her capacity as the Director of the Richland Lexington Disabilities and Special Needs Board; the Babcock Center; Judy Johnson, in her capacity as the Director of the Babcock Center; and other Unnamed Actors Associated with the Babcock Center.⁵

FACTS AND PROCEDURAL HISTORY

At the time of filing the amended complaint, Kobe was 29 years old.Kobe is unable to walk or to speak and has a history of convulsions.Kobe attends the Hope Bridge Adult Day Care program and receives Adult Day Health Care (ADHC) services.In December 2010, the Richland-Lexington Disabilities and Special Needs Board was directed by the South Carolina Department of Disabilities and Special Needs(DDSN) to update eligibility of persons using ADHC services.Kobe was informed by the Richland-Lexington Disabilities and Special Needs Board that he no longer was eligible for ADHC services.Kobe appealed the termination of services to DDSN, and DefendantBeverly Buscemi, Director of DDSN, determined on May 11, 2011, that Kobe shouldcontinue to receive ADHC services.Despite being successful at the DDSN level, Kobe appealed the termination of services to the South Carolina Department of Health and Human Services(DHHS).The issue was resolved by consent order dated August 9, 2012.There was no lapse in ADHC services for Kobe during this time.

Kobe also alleged that he requested from DHHS an augmentative communications device (ACD) to aid him in communicating.He received an ACD that was not as sophisticated as that prescribed by his treating physician.Kobe further contended that his wheelchair was damaged when he was dropped by employees of the Babcock Center while being loaded into a vehicle, and that the wheelchair was not replaced promptly by DHHS.

Mark also receives ADHC services.Like Kobe, Mark was notified in 2011 that he no longer was eligible for ADHC services.Mark appealed the termination to DDSN, which upheld the termination.However, the issue also was resolved in Mark's favor at the DHHS level by consent order.Mark's ADHC services did not lapse during this time period.

Mark lives with his sister.Mark contended that in 2010 DDSN reduced the number of respite hours to which he is entitled.Mark asserted that he is at risk of institutionalization if his sister is not provided with the support and services that he needs.

The matter came before the court on motions for summary judgment filed by Defendants on January 6, 2014.Plaintiffs also filed a motion for summary judgment on January 6, 2014, which was amended on January 22, 2014.The court held a hearing on September 23, 2014.Plaintiffs contended that the court should resolve the following issues:

(1) Have the Defendants violated the reasonable standards provision of 42 U.S.C. § 1396a(a)(17) of the Medicaid Act and the South Carolina Administrative Procedures Act by failing to establish and utilize reasonable,ascertainable, non-arbitrary standards and procedures to determine eligibility for and the extent of medical assistance provided to Plaintiffs?

Plaintiffs stated that the court should "issue a permanent injunction against Defendants denying medical services ordered by Plaintiffs' treating physicians based on binding norms that have not been promulgated as regulations.Plaintiffs requested that Defendants be required to give the deference ordered by the United States Supreme Court to the orders of Plaintiffs' treating physicians.Plaintiffs request that Defendants be prohibited from denying medically necessary services based on amendments made by the agencies without promulgation of regulations."

(2) Have the Defendants violated the "reasonable promptness" requirement of the Medicaid Act by failing to provide Kobe with the wheelchair and speech device his physician ordered and by failing to provide residential services in the least restrictive setting within ninety days of those needs being identified?

Plaintiffs stated that Kobe's physicians have ordered a wheelchair and speech device, but DHHS has failed to provide this equipment with reasonable promptness.Plaintiffs requested the court order Defendants to immediately provide Kobe with (1) a wheelchair to be provided within thirty days without further administrative delays, and (2) a speech device ordered by his physician within thirty days and speech services determined by his physician to be medically necessary, based on the evaluation by his licensed speech and language pathologists.

(3) Have the Defendants violated the integration mandate of the Americans with Disabilities Act by failing to provide Kobe with a wheelchair, a speech device, speech therapy services and placement in a supervised apartment with necessary support services?

Plaintiffs stated: "Kobe requests that this Court issue a declaratory order finding that Defendants have violated the ADA in the operation of their programs and enjoining them from continuing to violate the ADA.He requests that DHHS be ordered to pay for the wheelchair andspeech device ordered by his physician to be funded by Defendants.He requests continued speech services to improve his ability to communicate."

The court issued an order and opinion on September 30, 2014, concluding as follows:

A. Mootness

It is well settled that federal courts have no authority to "'give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.'"Int'l Coal. for Religious Freedom v. Maryland, 3 F. App'x 46, 48-49(4^th Cir.2001)(quotingChurch of Scientology of Cal. v. United States, 506 U.S. 9, 12(1992)).This is so even though such case presented a justiciable controversy at an earlier point in time and an intervening event rendered the controversy moot.Id.(citingCalderon v. Moore, 518 U.S. 149, 150(1996)).

In this case, Plaintiffs were informed in 2010 that they no longer qualified for ADHC assistance.However, their ADHC services were never interrupted, and they both prevailed during the administrative appeals process.Further, it appears that Kobe has received a new wheelchair.The court finds these claims to be moot.

B.Ripeness

The ripeness doctrine aims to "'prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies.'"Pasby v. Delia, 709 F.3d 307, 317(4^th Cir.2013)(quotingAbbott Labs. v. Gardner, 387 U.S. 136, 148(1967), abrogated on other grounds byCalifano v. Sanders, 430 U.S. 99(1977)).A claim should be dismissed as unripe if the plaintiff has not yet suffered injury and any future impact "'remains wholly speculative.'"Doe v. Virginia Dep't of State Police, 713 F.3d 745, 758(4^th Cir.2013)(quotingGasner v. Bd. of Supervisors, 103 F.3d 351, 361(4th Cir.1996)).In determining ripeness,

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