Thompson v. Fitzgerald

• Court: U.S. District Court — Northern District of Georgia
• Writing for the Court: Eleanor L. Ross, United States District Judge
• Citation: Thompson v. Fitzgerald, 558 F.Supp.3d 1334 (N.D. Ga. 2021)
• Decision Date: 27 August 2021
• Docket Number: 1:19-CV-05087-ELR
• Parties: Vincent THOMPSON, BY AND THROUGH his legal guardian, Charles BAILEY, Plaintiff, v. Judy FITZGERALD, in her official capacity as Commissioner of the Georgia Department of Behavioral Health and Developmental Disabilities, et al., Defendants.

558 F.Supp.3d 1334

Vincent THOMPSON, BY AND THROUGH his legal guardian, Charles BAILEY, Plaintiff,

v.Judy FITZGERALD, in her official capacity as Commissioner of the Georgia Department of Behavioral Health and Developmental Disabilities, et al., Defendants.

1:19-CV-05087-ELR

United States District Court, N.D. Georgia, Atlanta Division.

Signed August 27, 2021

Joshua H. Norris, Law Office of Joshua H. Norris, Decatur, GA, for Plaintiff.

Mark J. Cicero, Office of State Attorney General, Calandra A. Harps, Michelle LeGrande, State of Georgia Law Department, Atlanta, GA, for Defendants.

ORDER

Eleanor L. Ross, United States District Judge

There are several matters currently pending before the Court. The Court sets forth its rulings and conclusions below.

I. Background¹

This case arises from the alleged mishandling of Plaintiff Vincent "Vinny" Thompson's 2018 and 2019 appeals regarding the intended reductions of his Medicaid benefits. See generally Am. Compl. [Doc. 16]. Plaintiff is a sixty-three (63)-year-old man with developmental and intellectual disabilities, spastic quadriplegia, and a hearing impairment. See Defendants’ Statement of Material Facts ¶ 1 ("Defs.’ SOMF") [Doc. 43-2]; see also Plaintiff's Statement of Material Facts ¶ 1 ("Pl.’s SOMF") [Doc. 44-3].² Plaintiff is non-verbal, incontinent, and non-ambulatory, causing him to rely on a wheelchair for mobility and on caretakers for all life activities. See Pl.’s SOMF ¶ 1.

By and through his legal guardian, Mr. Charles Bailey, Plaintiff brings this action against Defendant Judy Fitzgerald, in her official capacity as Commissioner of the Georgia Department of Behavioral Health and Developmental Disabilities ("DBHDD"), and Defendant Frank Berry, in his official capacity as Commissioner of Georgia Department of Community Health ("DCH"). See generally Am. Compl. The Court provides the substance and context of Plaintiff's allegations below.

A. Overview of Georgia Medicaid Structure

To participate in the Medicaid program, Georgia must have a state plan for medical assistance approved by the Centers for Medicaid and Medicaid Services of the U.S. Department of Health and Human Services (the "state plan"). See Defs.’ SOMF ¶ 3; see also Pl.’s SOMF ¶ 7. Pursuant to the state plan, DCH is the agency that administers the Georgia Medicaid Program. See Defs.’ SOMF ¶ 4; see also Pl.’s SOMF ¶ 7.

One component of the Georgia Medicaid Program is the Comprehensive Supports Waiver ("COMP Waiver"), which provides home and community-based services to people with intellectual and developmental disabilities. See Defs.’ SOMF ¶ 2; see also Pl.’s SOMF ¶ 6. COMP Waivers are intended to provide a participant-centered service plan of care for each COMP Waiver recipient. See Pl.’s SOMF ¶ 10. Individual service plans provided through COMP Waivers are subject to annual review. See id. ¶ 11.

As the Medicaid agency for Georgia, DCH has delegated the day-to-day operation of the COMP Waiver program to DBHDD. See Defs.’ SOMF ¶ 5; see also Pl.’s SOMF ¶ 13. However, DCH "maintains administration of the COMP Waiver [p]rogram and oversees DBHDD's performance" of the daily operational functions. See Defs.’ SOMF ¶ 6; see also Pl.’s SOMF ¶ 13. One responsibility DCH delegates to DBHDD is the annual review of individual service plans for COMP Waiver recipients pursuant to 42 C.F.R. § 331.301(c)(3). See Defs.’ SOMF ¶¶ 5, 7; see also Pl.’s SOMF ¶¶ 11, 13. If DBHDD determines, upon its annual review, that a COMP Waiver recipient should receive funding for fewer hours of care per week, DBHDD must notify the recipient of its intent to reduce his services. See Defs.’ SOMF ¶ 9; see also Pl.’s SOMF ¶ 16.

When a Medicaid recipient's claim for medical assistance is denied, the Medicaid Act entitles him to a "fair hearing."³ See Defs.’ SOMF ¶ 10; see also Pl.’s SOMF ¶ 17. Requesting a fair hearing is the mechanism by which an individual may appeal the state agency's decision to deny or reduce his benefits. See 42 U.S.C. § 1396a(a)(3). The opportunity to receive a fair hearing applies to those situations where, upon its annual review, DBHDD decides to reduce the number of hours of care provided by an individual's COMP Waiver service plan. See Defs.’ SOMF ¶¶ 9–10; see also Pl.’s SOMF ¶¶ 17, 20.

After receiving a fair hearing request, the federal regulations implementing the Medicaid Act require state Medicaid agencies to take "final administrative action" within ninety (90) days. See Defs.’ SOMF ¶ 11; Pl.’s SOMF ¶ 18; see also 42 U.S.C. § 1396a(a)(3) ; 42 C.F.R. § 431.244(f)(1)(ii). In Georgia, DBHDD transmits fair hearing requests to the Office of State Administrative Hearings ("OSAH"), where an administrative law judge ("ALJ") presides over the fair hearing. See Defs.’ SOMF ¶ 27; see also Pl.’s SOMF ¶¶ 23–24. Therefore, except in unusual circumstances, the federal regulations require that "final administrative action" on these appeals occur within ninety (90) days of the date DBHDD receives the fair hearing request. See Defs.’ SOMF ¶ 11; Pl.’s SOMF ¶ 18; see also 42 U.S.C. § 1396a(a)(3) ; 42 C.F.R. § 431.244(f)(1)(ii).

B. Plaintiff's COMP Waiver and CAG Benefits

Plaintiff is a Medicaid recipient and participates in the COMP Waiver program to assist with all his living and daily care needs. See Defs.’ SOMF ¶ 2; see also Pl.’s SOMF ¶ 5. Specifically, Plaintiff receives thirty (30) hours of assistance each week from one state-approved home and community services provider, which are funded by the state through his COMP Waiver service plan. See Pl.’s SOMF ¶¶ 8, 14. These home and community services are known as Community Access Group ("CAG") services. See id. ¶ 15. As part of the COMP Waiver program, CAG Services are "designed to provide oversight, assist with daily living, socialization, communication, [ ] mobility skills building and supports" in a group setting to individuals with certain disabilities. See id.

C. Plaintiff's 2018 Fair Hearing Request

Prior to 2018, pursuant to Plaintiff's COMP Waiver service plan, DBHDD had approved payment for thirty (30) hours per week of one-on-one (or "1:1") services for Plaintiff from a CAG provider. See Defs.’ SOMF ¶ 8; see also Pl.’s SOMF ¶ 14. Following its annual review of Plaintiff's COMP Waiver service plan, on May 18, 2018, DBHDD sent Plaintiff a written notice (the "2018 Notice") informing him that DBHDD had decided to reduce his CAG services from thirty (30) hours of assistance per week to nine (9) hours per week. See Defs.’ SOMF ¶ 9; see also Pl.’s SOMF ¶ 16.

By a letter dated June 18, 2018, Plaintiff responded to DBHDD and requested a fair hearing to appeal its decision (the "2018 Fair Hearing Request"). See Defs.’ SOMF ¶ 12; see also Pl.’s SOMF ¶ 19. DBHDD received Plaintiff's 2018 Fair Hearing Request no later than June 23, 2018. See Pl.’s SOMF ¶ 21.

However, as of November 7, 2018, the DBHDD staff attorney who received Plaintiff's 2018 Fair Hearing Request—Ms. Monica Patel—had failed to forward it to OSAH. See Defs.’ SOMF ¶ 13; see also Pl.’s SOMF 21. This was approximately one hundred thirty-seven (137) days after DBHDD received Plaintiff's 2018 Fair Hearing Request, far outside the ninety (90)-day period provided for the state to take "final administrative action." See Defs.’ SOMF ¶ 13; Pl.’s SOMF ¶¶ 16, 23; [see also Doc. 48-2]. Thus, on November 7, 2018, counsel for Plaintiff sent an email to Ms. Patel, "inquiring regarding a hearing date o[n] Plaintiff's fair hearing request[,] informing her of the [alleged] violation of 42 C.F.R. § 431.244(f)(1) [,] and requesting a withdrawal of [DBHDD'S] the reduction of [Plaintiff's] CAG services." See Pl.’s SOMF ¶ 22; see also Defs.’ SOMF ¶ 14; [Doc. 48-1]. Ms. Patel responded to the November 7, 2018 email from Plaintiff's counsel the same day, whereby she represented: "[Plaintiff] has not experienced the reduction noted in the Adverse Action Notice mailed to him on May 18, 2018. He continues to receive funding for 30 hours per week of 1:1 staffing .... I'll forward the request to OSAH[.]" [See Doc. 48-2 at 2]. On February 22, 2019, DBHDD agreed to rescind the May 18, 2018 decision to reduce Plaintiff's CAG services. See Defs.’ SOMF ¶ 15; see also Pl.’s SOMF ¶ 26.

The only disputed material fact in this matter is whether Plaintiff's services were actually reduced between DBHDD's 2018 Notice to him (indicating the agency's decision to reduce his 1:1 CAG service hours from thirty (30) hours per week to nine (9) hours per week) and the time DBHDD officially rescinded its decision to reduce Plaintiff's hours on February 22, 2019. See Defs.’ SOMF ¶ 16; Pl.’s SOMF ¶ 25; see also Pl.’s Response to Defs.’ SOMF ¶ 16 ("Pl.’s Resp. to Defs.’ SOMF") [Doc. 49]; Defs.’ Response to Pl.’s SOMF ¶ 25 ("Defs.’ Resp. to Pl.’s SOMF") [Doc. 51]. In their statement of material facts, Defendants maintain that they never reduced Plaintiff's CAG services and Plaintiff never experienced any reduction in services during the pendency of his 2018 Fair Hearing Request; however, they subsequently appear to admit Plaintiff "may have actually experienced a reduction in his services." See Defs.’ SOMF ¶ 16; Defs.’ Resp. to Pl.’s SOMF ¶ 25.

In response, Plaintiff proffers that he did, in fact, experience a reduction of his CAG services for several months: from September 2018 until January 2019. See Pl.’s Resp. to Defs.’ SOMF ¶ 16; see also Pl.’s SOMF ¶ 25; Defs.’ Resp. to Pl.’s SOMF ¶ 25; Second Decl. of Jen Keir ("2d Keir Decl.") [Doc. 52-2]. In support, Plaintiff tenders a sworn statement from Ms. Jen Keir, who works as an operations manager for intellectual and development disability services at the organization that provides Plaintiff's CAG services (the Jewish Family & Career Services of Atlanta, hereinafter "JFCS" or simply "the organization"). See 2d Keir Decl.

According to Ms. Keir, JFCS serves Plaintiff pursuant to his COMP Waiver Individual Support Plan ("ISP"), which provided Plaintiff with "30 hours per week of 1:1 [CAG] services" for 2017–2018. See id. ¶ 3....