Judge’s order give NC 10 years to provide services to people with disabilities

By Taylor Knopf and Rose Hoban

In a sweeping judgment handed down last week, a Superior Court judge ruled that the state of North Carolina needs to provide services to people with intellectual and developmental disabilities in the home settings that they choose. 

In his order, Judge Allen Baddour noted that North Carolina is “over-reliant on institutions” for people with intellectual and developmental disabilities. 

This has been a problem for a very long time. 

For years, families of people with disabilities have filed lawsuits and complained that North Carolina has dragged its feet in providing support services in community settings. There is a state Medicaid program — known as the Innovations Waiver — that allows people with disabilities to receive services at home or in the community setting of their choice. However, an ever-growing waitlist has more than 16,000 people who, under current circumstances, will wait up to a decade or more for a slot to receive services.

Baddour’s ruling gives the state a 10-year timeline for serving all of the potential recipients and eliminating the massive waitlist. That would mean people who currently live in institutions — because they and their families have no other option — would have the choice to live in the community with appropriate services provided by the state. 

Disability Rights North Carolina, the group representing the plaintiffs, called this a “historic” ruling that will “end segregation of thousands of people with intellectual and developmental disabilities.”

The lawsuit, Samantha R. et al v North Carolina and the NC Department of Health and Human Services, was filed in 2017 on behalf of a now 33-year-old woman, Samantha Rhoney, who is intellectually and developmentally disabled. Since 2015, Rhoney has lived in the J. Iverson Riddle Developmental Center in Morganton where her parents placed her after being denied the services they needed to keep her at home.

As the case moved to resolution this summer, Rhoney was able to move into a home in the community, outside the walls of the Riddle Center. She continues to go to Riddle most days for a day program, but she sleeps in a bed in her own home.

“I believe in my heart Samantha is in a beautiful home because God is giving her a blessing for all the trials she had to endure,” her mother Dana Rhoney said in a statement issued by Disability Rights North Carolina “I want people to know Samantha, I want people to see the beautiful side of her. And I want the state to wake up and offer support (to others). The state could actually save money if they would offer the support.”

Aside from the victory for Rhoney, advocates in the disability community are applauding the ruling, which has the potential for producing a sea change in the lives of people with disabilities in North Carolina. 

But the Rhoneys’ fight is far from over. It will take a lot of planning and likely a billion dollars in funding for North Carolina to comply with the judge’s order. In the past, the state has been slow to comply with court rulings that require large investments. On top of that, the state’s Department of Health and Human Services has indicated that it may appeal the ruling, which would further delay the process. 

Long history of discrimination

Last week’s ruling builds upon federal law that prohibits warehousing people with disabilities away from the rest of society.

In 1990, President George H. W. Bush signed the Americans with Disabilities Act which prohibits discrimination against people with disabilities of all kinds. But as the 1990s wore on, it was evident that people with disabilities weren’t receiving some of the rights guaranteed to them in the ADA. Then in 1999, the U.S. Supreme Court issued the Olmstead decision, which clarified the ADA. Justice Ruth Bader Ginsberg wrote in an opinion for the majority that people with disabilities were experiencing “unjustified segregation” when they were denied the opportunity to live a life fully integrated into their communities. 

Because of the Olmstead decision, states have been compelled to provide services to people with disabilities in the communities where they want to live. But North Carolina has come under scrutiny for dragging its feet in providing the services to help people live where they wish. 

For the plaintiff Samantha R., that’s been the case. Her family was forced to place her in a state institution when Partners Health Management, one of North Carolina’s state-funded mental health management agencies, refused her parents’ requests for services in their home, despite multiple requests and trips to court. 

Before then, the Rhoneys described taking Samantha out to restaurants, water parks and concerts. As their support dollars from Partners were cut, though, they said they had no choice but to place her in an institution.

When her parents finally admitted Samantha to the J. Iverson Riddle Developmental Center in Morganton, her father added a written addendum to her admission papers.

“The reason the guardians are requesting this placement is Partners’ refusal to approve the proper level of service in her natural home. Therefore she must go from the least restrictive setting to the most restrictive setting in order to assure her health and safety,” Tim Rhoney said, according to documents provided by Disability Rights North Carolina. 

Getting buy-in from lawmakers

Executing the plan laid out in the judge’s ruling will require a large and continued financial investment from lawmakers, who have not been quick to spend on such needs.

In last year’s biennial budget, state lawmakers appropriated funds for 1,000 additional Innovations Waiver slots at a cost of about $30 million. All told, the General Assembly has funded fewer than 2,000 waiver slots over the past decade, even as the waitlist ballooned from about 10,000 in 2012 to about 16,000 at present. During that time, lawmakers also commissioned two groups to study the program. 

The judge’s order also addresses the people who live in institutions such as the Riddle Center and as many as 3,100 residents of 349 smaller intermediate care homes throughout the state, about 4,000 people all told.

NC Health News made several requests for comment to legislative leaders on the decision but did not get a response. 

Baddour’s ruling came the same day that the state Supreme Court issued a 4-3 ruling in the long-running Leandro case, ordering lawmakers to adhere to a spending plan to ensure that all children in North Carolina have access to a “sound basic education.”

Justice Robin Hudson wrote the majority opinion for the four Democrats on the state’s highest court disputing lawmakers’ contention that forcing such a spending plan violates the separation of powers and the General Assembly’s control of state purse strings.

In a dissent for the three Republican members of the court, Justice Phil Berger Jr. called the majority opinion “tyranny.”

This decision from Baddour may well receive the same kind of legislative pushback as Leandro. State Medicaid head Dave Richard said the legislators he talked to were not pleased. Part of that displeasure stemmed from the fact that lawmakers have started making investments aside from the additional waiver slots last year. And legislators had committed to add more slots for the Innovations Waiver in the coming years than they had before.

“I won’t speak for them, but I don’t think any of them were really thrilled with the idea of the order itself,” Richard said.

As for his department, Richard said officials are considering their options. 

“We as a department, we tend to want to abide by judges’ orders, that’s our makeup,” Richard said. “We want to follow the law and follow what the Court tells us to do.”

Richard emphasized the constraints created by Baddour’s ruling and the reality that the system will need time to adjust. He said it’s been a challenge to find workers to serve the 1,000 extra slots added just in the past year, given the low wages on offer. That’s even after the General Assembly raised wages for workers serving people in the Innovations program by $2.10 per hour across the board. It was the largest one-time salary increase the legislature ever granted the program.

“And we still have significant difficulty getting people to work in those services because of what we’re seeing,” Richard said. “That probably got people at $13 or $14 an hour. And the reality is we need to get people to $18 to $19 an hour if we’re going to compete.”