This just in from the good folks at Disability Rights NC :
‘April 2, 2013, Raleigh, NC: Today the US Court of Appeals for the Fourth Circuit denied the State’s request for a rehearing in Pashby v. Delia. The appellate court affirmed a decision made by US District Court Judge Terrence Boyle in 2011 to stop the State of North Carolina from implementing a new policy concerning Medicaid personal care services that he said treats people with similar needs differently and puts North Carolinians “who have been successfully living in their own homes…at risk of segregation, in the form of institutionalization.” The case will now return to district court for further proceedings and a final determination.
This is the first time that the Fourth Circuit has held that the Olmstead mandate extends to people with disabilities who are at risk of institutionalization. The appeals court agreed with Judge Boyle’s conclusion that adult care homes are “institutional settings that segregate residents from the community . . .” “The State’s bias towards institutionalizing people with disabilities violates the Americans with Disabilities Act,” said Vicki Smith, Executive Director of Disability Rights North Carolina. “We hope the court’s decision will end the State’s reluctance to acknowledge that adult care homes are institutions. This decision should emphasize the importance of a permanent solution for providing services without creating an institutional bias. Providing services in our communities will be cheaper and comply with federal law – a double win for the NC taxpayers.”
The appeals court also rejected the State’s argument that budgetary concerns were a legitimate reason to discontinue providing in-home personal care services to many people with disabilities, stating “financial constraints alone cannot sustain a fundamental alteration defense.”
The class action lawsuit was filed on May 31, 2011 to stop the NC Department of Health and Human Services from implementing the cuts to in-home services. Among the services to be cut were assistance with bathing, dressing, toileting, mobility, and eating – cost-effective services on which individuals with disabilities, who have no other caretaker, depend to avoid more costly placement in institutions such as adult care homes. At the time the lawsuit was filed, nearly 3,000 people with disabilities would have been negatively impacted if the State’s policy had gone into effect in June 2011.
Lawyers with Disability Rights North Carolina, Legal Services of Southern Piedmont, and the National Health Law Program are representing the plaintiffs in this lawsuit.’