Scully v. Hamilton Cnty. Developmental Disabilities Servs.
| Decision Date | 17 August 2021 |
| Docket Number | 1:17-cv-685 |
| Parties | JESSICA SCULLY, Plaintiff, v. HAMILTON COUNTY DEVELOPMENTAL DISABILITIES SERVICES, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
ORDER: (1) RESOLVING ALL PENDING MOTIONS; AND (2) TERMINATING THE CASE ON THE DOCKET OF THIS COURT
This civil case is before the Court on the following motions: (1) Defendants Jerry Clark, Allison Leedy, Alice Pavey and the Hamilton County Developmental Disabilities Services (“DDS”) (collectively, the “DDS Defendants”)'s motion for summary judgment (Doc 89) and the parties' response memoranda (Docs. 92-1, 95) (2) the DDS Defendants' motion to strike Plaintiff Jessica Scully's response in opposition to their motion for summary judgment (Doc. 91), and Scully's responsive memorandum (Doc. 92); (3) the DDS Defendants' motion to strike Scully's affidavit (Doc. 94), to which no response was filed; (4) Defendant M.C. Mobility Systems' motion for summary judgment (Doc. 108), to which no response was filed; and (5) M.C. Mobility's alternative motion to enforce the settlement agreement (Doc. 110), to which no response was filed.
I.BACKGROUND[1]
Plaintiff Jessica Scully is a disabled Hamilton County, Ohio resident, suffering from a progressive condition called fibro dysplasia ossificans. (Doc. 93 at ¶¶ 1-2). Scully has been confined to a motorized wheelchair since age fourteen, and she has received services from the DDS Defendants for over ten years. (Id. at ¶¶ 1-2, 61).
Scully's medical care payment is governed by a complex payer sequence pursuant to Ohio rules and regulations. (Id. at ¶ 19). Her payer sequencing is as follows: (1) private insurance through Medical Mutual; (2) Medicare; (3) Medicaid; and (4) Home and Community-Based Waiver. (Id. at ¶ 16). Given this payer sequencing, Scully's providers must be: (a) approved by her private insurance; and (2) as a home and community-based waiver provider. (Id. at ¶ 17). This may result in only a select few eligible providers for Scully's services. (Id. at ¶ 27). Moreover, a provider may remove itself from the list of willing providers at any time without reason, and an individual may choose to switch to a different qualified and willing provider at any time without reason. (Id. at ¶ 25).
DDS is a Medicaid local administrative authority and provides services to 7, 800 disabled individuals in Hamilton County. (Doc. 89-1 at ¶¶ 2, 77). DDS is governed by a board, which board is responsible for overall administration, not the day-to-day operations of DDS. (Id. at ¶ 4). The Ohio Department of Developmental Disabilities (“DODD”) provides oversight of DDS to ensure compliance with state and federal rules and regulations. (Id. at ¶ 3). DODD and the Ohio Department of Medicaid (“ODM”) -not DDS - govern certification and agreements with qualified and willing providers. (Id. at ¶¶ 9, 11). A “provider” is an entity or independent person who is certified by DODD and has a Medicaid provider agreement with ODM. (Id. at ¶ 13).
Defendant Alice Pavey is the Superintendent/CEO of DDS, and reports to a seven-member board of directors. (Id. at ¶ 77). In this role, Pavey responsibilities include: (1) serving as a professional advisor to the board; (2) recommending and implementing policies; (3) informing the board of programs; (4) developing a budget; (5) recruiting qualified and competent staff; and (6) conducting community outreach. (Id. at ¶ 5).
Pavey and Scully spoke on occasion in 2015 or 2016, with Scully complaining to Pavey about the services provided by DDS and the safety of the wheelchair lift in her van. (Id. at ¶ 75). Following these complaints, Pavey offered to switch Scully's Service and Support Administrator (“SSA”), but Scully declined her offer. (Id. at ¶ 78). Pavey is not involved with the specifics of Scully's day-to-day care, or any other individuals served by DDS. (Id. at ¶ 79).[2]
Defendant Allison Leedy, now a SSA Manager with DDS, was previously a SSA Supervisor, managing Clark and 11 other SSAs. (Id. at ¶ 81). In this role, Leedy's responsibilities include: (1) providing training, oversight, support, and direction to SSAs in accordance with DDS' policies, procedures, and governing rules; and (2) assisting with day-to-day matters when her reports are unable to resolve those matters on their own. (Id. at ¶ 6).
In September of 2015, Leedy assisted with Scully's day-to-day care when Clark was on an extended period of leave. (Id. at ¶ 74). At the time, DDS was assisting Scully with her search for a potential homemaker personal care provider. (Id.) Leedy offered to call potential providers for Scully; however, Scully declined the offer and did not ask for additional help. (Id.; Doc. 92-2 at ¶ 74). Leedy also spoke to Scully on the phone and visited her home on June 20, 2016 to problem solve and to discuss Scully's services. (Doc. 89-1 at ¶ 82).
Defendant Jerry Clark is Scully's SSA and has served in that role since 2014. (Id. at ¶ 62). As an SSA, Clark's responsibilities include: (1) being the primary point of contact to develop, implement, and coordinate an individual's service plan (“My Plan”); (2) ensuring the individual being served is given the opportunity to select from all willing and qualified providers; (3) providing ongoing coordination of an individual's My Plan; and (4) keeping lines of communication open by the individual's preferred method. (Id. at ¶ 7). For example, Clark may assist with the coordination between Scully and a qualified and willing provider for a new powered wheelchair. Although Scully alleges instances purporting to show that Clark has failed to provide or interfered with her services, Scully has never asked to have Clark removed as her SSA nor has she ever requested that Clark be replaced with someone else. (Id. at ¶ 65).
Scully admits that no Defendant has made any negative comments about her disabilities, mentioned this litigation to others or providers, or made negative statements during any of Scully's Medicaid appeals. (Id. at ¶¶ 66, 69). Scully's primary home care provider for at least the past nine years, her daughter Ali, also admits that her and her mother have a “fine” working relationship with Clark and, on the whole, get along well with Clark. (Id. at ¶ 76).
M.C. Mobility installed a wheelchair lift and EZ Lock locking mechanism in Scully's van in November 2014. (Doc. 108-1 at ¶ 3). M.C. Mobility returned the van to Scully on November 17, 2014. (Id. at ¶ 4). After Scully reported that the lift in her van was too large, maintenance was completed on her van again. (Id. at ¶¶ 5-6). A used, EZ Lock (part of the mechanism) was installed on December 20, 2014, and a new lock ordered. (Id. at ¶ 6). The new EZ Lock was installed on February 4, 2015. (Id.)
In the interim, on January 26, 2015, Scully injured her toes getting into the van, which injuries she attributed to the EZ Lock system. (Id. at ¶ 10). Scully was in another injury accident on February 2, 2016 while in her van; however, does not attribute any injuries from that accident to the EZ Lock. (Id. at ¶ 11). As of August 29, 2019, Scully was still using the same van, lift, and EZ Lock system. (Id. at ¶ 13). She has reported no other injuries. (Id.)
Scully filed her original complaint on October 12, 2017 with the assistance of counsel against 19 defendants. (Doc. 1-2). Overtime, via voluntary dismissals (Docs. 45, 81) and this Court's Order resolving multiple motions to dismiss (Doc. 55), only the DDS Defendants and M.C. Mobility remained as defendants.
On April 3, 2020, pursuant to the then-current Calendar Order (Doc. 63), the DDS Defendants filed a timely motion for summary judgment (Doc. 89), which motion is currently pending before the Court. At that time, Scully was still represented by counsel, and responded to the motion with assistance from counsel. (Doc. 90). Scully's response prompted the DDS Defendants to file the currently-pending motion to strike Scully's response in opposition because Scully's response failed to comply with this Court's Standing Order. (Doc. 91). Scully, with the assistance counsel, responded to that motion, including an amended affidavit of Scully. (Docs. 92, 93). That amended affidavit prompted the DDS Defendants to file the motion to strike Plaintiff's affidavit (Doc. 94), their third motion at issue in this Order.
On May 18, 2020, M.C. Mobility and Scully, through counsel, informed the Court that M.C. Mobility and Scully had reached a tentative settlement agreement. (Doc. 110-2). However, it would take additional time to fully finalize as M.C. Mobility needed documentation from Scully regarding any liens before payment could be made. (Id.)
Then, after suffering major health issues and unexpected changes to her practice, Scully's counsel moved to withdraw, which motion this Court granted. (Docs. 96, 97; 7/9/2020 Notation Order). Given Scully was no longer represented, the Court stayed the action for 90 days to afford Scully the opportunity to either obtain new counsel or elect to proceed pro se, and scheduled a status conference at the end of those 90 days. (7/9/2020 Notation Order). In that Order, the Court advised Scully that she must appear at that conference, either herself or through new counsel, and provided a call-in number. (Id.)
Scully did not appear at that conference, calling the incorrect number. (9/28/2020 Minute Entry and Notation Order). The Court scheduled another status conference, advising Scully of the steps to call-in to the conference and advising Scully that she must appear, either herself or through counsel. (Id.) Scully, pro se, called into the next...
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