District judge rules Medicaid lawsuit can proceed as class action

By Kyla Asbury | Oct 7, 2016

CHARLESTON – District Judge Thomas E. Johnston has ruled that a lawsuit involving the Medicaid Title XIX Intellectual/Developmental Disability Waiver program can proceed as a class action lawsuit.

Johnston also denied the defendants’ motion to dismiss two counts and the claims of two plaintiffs, according to the Sept. 30 order.

A settlement conference is scheduled for Oct. 28 at 9 a.m. in Charleston at the federal courthouse, according to the order.

On Sept. 13, Johnston granted the plaintiffs’ motion for preliminary injunction in part to the extent that the plaintiffs requested injunctive relief to the named plaintiffs.

Johnston found that the plaintiffs had demonstrated that they are likely to succeed on the merits of their procedural due process claim relating to the APS algorithm, that they are likely to suffer irreparable harm, the balance of hardships tips in their favor and a preliminary injunction is in the public interest.

“The court therefore finds that plaintiffs have satisfied each of the requirements for a preliminary injunction…and this extraordinary equitable relief is warranted in this case,” the opinion stated.

The lawsuit was first filed in July 2015 in the U.S. District Court for the Southern District of West Virginia against Karen Bowling, the Secretary of the West Virginia Department of Health and Human Resources.

The plaintiffs include Michael T., a person with diminished capacity; Eric D. , by his guardian, Connie D.; Sara F., by her guardians, Rebecca F. and David F.; Jeremy C., by his guardian Jo C.; and Tara R., by her guardian Harv Christian R.

The plaintiffs claim that individuals with intellectual and developmental disabilities who qualify to receive home and community-based services receive an annual amount of waiver benefits represented by a budget for waiver services.

The allotment of waiver benefits, by law, must be based on that person’s individual need for care according to a local care provider team most familiar with the individual’s needs and be sufficient to maintain the recipient in a safe, healthy and humane condition with an integrated community and home-like setting, according to the suit.

The plaintiffs claim in contrast, each year APS generates the benefit amounts arbitrarily through a secret and proprietary computer algorithm that does not give appropriate weight to recipient need and the amount of waiver benefits actually authorized in prior years.

The plaintiffs are seeking restoration of the lost benefits for themselves and class members. They’re being represented by Gary M. Smith, Lydia C. Milnes and Bren J. Pomponio of Mountain State Justice.

The defendants are represented by Shruti C. Barker, Caroline M. Brown and Philip J. Peisch of Covington & Burling; and Kimberly L. Stitzinger of the Office of the Attorney General.

U.S. District Court for the Southern District of West Virginia case number: 2:15-cv-09655

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Covington & Burling Mountain State Justice Inc

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