By Anne Blythe
Four weeks after a state superior court judge issued a far-reaching ruling ordering North Carolina to deliver services in home settings to people with developmental and intellectual disabilities, the state is appealing the decision.
Kody Kinsley, secretary of the state Department of Health and Human Services, announced the decision on Wednesday during a briefing with reporters.
The case at issue was filed in 2017 in Wake County Superior Court as Samantha R. and Disability Rights North Carolina v. State of North Carolina Department of Health and Human Services and Kody Kinsley, in his official capacity as Secretary of DHHS. Samantha Rhoney, now 33, is the lead plaintiff in the lawsuit accusing the state of not doing enough to provide support to residents with intellectual and developmental disabilities in community settings of their choice.
The focus is on the Innovations Waiver, a state Medicaid program, that gives DHHS leeway to allow people with disabilities to receive care in their homes or community settings.
The program, however, is underfunded for the number of people who need services. There are 16,000 more people waiting for such services than state-funded slots available with a waitlist that could extend as long as a decade.
On Nov. 2, Judge Allen Baddour issued a 12-page order in which he gave the state 10 years to move individuals in institutional settings to home-based or community-based services of their choosing, using funding from the Innovations Waiver.
Disability rights advocates applauded the decision and described it as a long-time coming.
DHHS announced plans on Wednesday to challenge the ruling in the state Court of Appeals while also acknowledging that greater strides are necessary to live up to its “commitment of serving individuals with disabilities and supporting them to lead a life that is safe, healthy and fulfilling.”
“Core to that commitment is our commitment to choice, making sure that individuals with disabilities can live self-directed lives and have opportunities throughout the state and communities to live those lives, and that their families can be supported as well,” Kinsley said.
Before the lawsuit was filed in 2017, Samantha Rhoney’s parents felt compelled to place their intellectually and disabled daughter in the J. Iverson Riddle Development Center in Morganton after being rejected for services they needed to be able to keep her at home with them.
That changed as the lawsuit went before Judge Baddour, and recently Rhoney has been able to participate in programs at the Riddle Development Center during the day and sleep in her bed at her own home. That did not stop the lawsuit from moving ahead in court.
Others on the waiver waiting list continue to be compelled to live in institutions, an impediment to care that Disability Rights NC finds unacceptable and is willing to continue to fight the obstacle in appeals court.
Virginia Knowlton Marcus, CEO of Disability Rights NC, described Baddour’s ruling in a statement sent to reporters as “very strong legally” and unlikely to be reversed.
Kinsley said DHHS worried about a provision in the order that in six years ends long-term admissions into intermediate care facilities.
“While the department is deeply aligned with many aspects of that decision, I have grave concerns about keeping pieces of that decision that would limit choice for individuals and potentially push over a thousand, if not more, individuals in small community-based homes and other spaces out of those stable environments that their family members and they rely on every day, in a short period of time,” Kinsley said Wednesday.
Plan and more plans
Kinsley outlined steps the department has taken this year to tackle long-term problems brought to the state’s attention by advocates for people with disabilities.
In January, the department released its Olmstead plan for 2022 and 2023 which calls for placing at least 3,000 qualified people with disabilities into independent housing. Fulfilling the long-term vision of the Olmstead Plan, according to DHHS, will take annual investments of $150 million.
The General Assembly funded an additional 1,000 waiver slots in its most recent spending plan.
Additionally, the first-year secretary announced a newer and more ambitious plan as well as new roles for Kelly Crosbie, who will serve as director of the Division of Mental Health, Developmental Disabilities and Substance Abuse Services, and Renee Rader, who will be the deputy director.
Kinsley said he had buy-in for more funding from Gov. Roy Cooper as he puts forward a budget proposal early next year. Funding, though, will depend largely on what Republicans leading the state Senate and House of Representatives will support in the coming budget cycle.
Kinsley hopes to persuade lawmakers of the importance of doing more for people with disabilities.
“This plan has been formed by careful conversations with individuals with disabilities, their family members and stakeholders from all across the state that we’ve been hearing from incredibly loudly over the last month and longer,” Kinsley said. “These conversations are critical and important in working with people to build a North Carolina together that we want to be different, is critical for all of us, and is going to take all of us to get it done.”
A missed opportunity?
Disability Rights NC was not at the table for the creation of that vision, according to Corye Dunn, director of public policy for the organization.
Knowlton Marcus, the CEO, lamented the state’s unwillingness to try to craft a settlement or joint motion for Baddour to consider that would have gotten to the heart of the DHHS concerns expressed by Kinsley.
“Many people in our community have spent valuable time and effort in good faith attempts to help move the state to action,” Knowlton Marcus said in her statement. ” … The Samantha R. decision was our vision made reality and we will not give up the fight.
“DHHS has failed to cooperate with this process, refusing to engage in planning or negotiation, failing to offer milestones or benchmarks they could meet, and now appealing the court order, delaying justice for North Carolinians with I/DD even longer.”