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Access Press - Minnesota's Disability Community Newspaper

Waiver lawsuit to proceed

by // August 10th, 2016

A class action lawsuit centered on management of Minnesota’s Home and Community-Based Waiver Services Program can proceed, a U.S. District Court judge ruled July 28. The court rejected a request by state officials to dismiss the lawsuit, which centers on deprivation of more than $1 billion in services to people with disabilities.

The next step could be an immediate appeal to the federal Eighth Circuit Court of Appeals. No appeal had been filed as of Access Press deadline. The court was expected to issue a subsequent order and conference to address next steps with all parties in early August.

The case moves forward with Minnesota Department of Human Services (DHS) Commissioner Emily Johnson Piper as defendant. Judge Donovan Frank dismissed DHS as a second defendant, stating that it would be redundant to have both DHS and Johnson Piper as defendants. Frank also dismissed the State of Minnesota as a defendant, because the lawsuit’s focus is DHS practices.

The judge also stated that Minnesota’s counties are not required parties to this action because the court could award the relief plaintiffs seek in the counties’ absence.One issue raised in the fight over waiver services is counties not acting to get people into needed services programs, and sitting on the funding.

Frank stated that the plaintiffs in the case have plausibly outlined viable claims against the commissioner under the federal Medicaid Act, the Americans with Disabilities Act, the Rehabilitation Act and the due process clause of the 14th Amendment to the United States Constitution.

Shamus O’Meara, lead counsel for the families, said the ruling is “great news for people with disabilities. It rejects the state’s contention that the families’ claims have no legal merit and are not worthy of their day in court. Their claims of DHS fiscal mismanagement of a critical federal program, placing people with disabilities on waiting lists for years and never bothering to tell them that millions of dollars had been available for their needs, will now move forward to justice.”

Families involved in the lawsuit contend that for more than two decades DHS mismanaged funds appropriated by the Minnesota Legislature for the Home and Community Based Waiver Services program. The program helps people with disabilities live independent, inclusive lives within their communities.

The lawsuit alleges that more than 5,000 people with disabilities have been placed on waiting lists, many for years, deprived of waiver services for which they are eligible and never told that money was available for them. The large number of potential litigant prompted the drive for a class action lawsuit.

All four plaintiffs who are central to the lawsuit are Minnesotans with disabilities. Their claims focus largely on two type of waiver services, for developmental disabilities or DD service or Community Access for Disability Inclusion or CADI waivers. All four receive some level of service to help with day-to-day living, but they have waited for years for waiver services. Kyle Guggenberger alleged that he was placed on a waiting list more than five years ago after being found eligible for DD Waiver Services. Jay Hannon is in a similar situation. Abigail Pearson has waited for the same waiver services for more than 14 years.

Amber Brick was placed on a waiting list more than three years ago after being found eligible for CADI Waiver Services. The four plaintiffs are between the ages of 22 and 25 and reside at home with their parents. With additional waiver supports and services, all contend that they could be more fully integrated into their communities and not isolated in their parental homes.

One focus in Frank’s ruling is the federal Medicaid Act and some of its legal provisions. One provision he and the plaintiffs singled out calls for services to be delivered within a reasonable amount of time. Another provision is that those eligible for the services to have freedom of choice. His 104-page ruling cited case law from other states where similar issues were raised.

The plaintiffs contend that Johnson Piper doesn’t have an effective and comprehensive plan for ensuring that plaintiffs and other people with disabilities be provided with waiver services within the funding appropriated by the Minnesota Legislature each year, rather than placing them on wait lists, to enable them to live in the most integrated settings possible, consistent with their needs and preferences.” They also claim that the action of the defendants have caused them harm and have caused them to remain isolated from their communities in a discriminatory manner in violation of federal law.

The plaintiffs also took aim at counties, stating in court documents that DHS has made recommendations that counties reduce their reserves, spend additional funding and reduce their waiting lists. One report stated that many counties “had room in their budgets to provide additional services or add more participants to programs.”

Court documents state that DHS’s most recent waiver services review reported that 72 out of 81 Minnesota counties or lead agencies had unspent reserves of 4 percent or more in their DD Waiver budgets. Of these 72 lead agencies, 30 had reserves of 10 percent or more. It is further alleged that 75 out of 81 lead agencies had unspent reserves of 4 percent or more in their Community Alternative Care/CADI/Brain Injury budgets. Of these, 48 had reserves of 10 percent or more.

Not spending money on services means that the dollars go back to the state’s general fund. The plaintiffs stated that the defendants could have provided them with the services they seek without fundamentally altering the state’s programs or unduly burdening the state, by spending the unspent program dollars.

They also pointed out that people on waiting lists are routinely denied the opportunity to challenge their placement on a waiting list, through a hearing process.

The lawsuit was filed almost one year ago, Read more about the filing here.

 

 

 

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