Virginia retardation services suit settled
A federal court suit filed by advocates for people with mental retardation against the Virginia Department of Medical Assistance Services has been settled by the parties involved.
Attorney Victor Glasberg represented the six adults and two children who charged in their suit that the department violated federal Medicaid law when it denied them needed services under a waiver for lack of funding and failure to meet emergency criteria. He tells State Health Watch that state officials agreed with the advocates’ position and have been doing everything correctly since the agreement was reached.
"We’re very happy with the results to date," Mr. Glasberg says. "But the overriding problem — a lack of money — hasn’t gone away."
The suit was filed in December 2000 on behalf of Virginians with mental retardation who are eligible under a Medicaid waiver to receive medically necessary services in the community. Such services include group home placement, vocational support, behavior management, respite care, and other supports for community living. Under federal Medicaid law, once people have been designated as eligible to receive waiver services, it is a violation to deny requests for additional services.
When the suit was filed, Ray Burmeister, immediate past president of The Arc of Virginia, a statewide advocacy organization for people with mental retardation and other developmental disabilities, and their families, said, "These services are critically needed. We aren’t talking about extravagant spending. These services are for basics — a place to live, well-trained caregivers, respite care for families, and other simple everyday supports."
The suit (Quibuyen v. Rossiter) was captioned for Rubin Quibuyen, one of the adult plaintiffs, who has autism, profound mental retardation, and developmental disabilities. In court documents submitted by the Washington, DC-based Bazelon Center for Mental Health Law, Mr. Quibuyen was described as ". . . much taller and stronger than the rest of his family, is hyperactive, and while gentle, has no understanding of danger. He requires constant supervision as well as a great deal of assistance in daily living."
In 1999, Rubin Quibuyen’s mother and stepfather asked the Fairfax County Community Services Board to cover his placement in a group home under the Medicaid waiver because neither they nor his grandparents, with whom he stayed weekdays while the parents were at work, could continue to provide the intensive care he needed. The request was denied.
Under the agreement providing for dismissal of the lawsuit, the state will issue new regulations assuring that requests for waiver services will be evaluated under federal Medicaid standards that require services when needed to protect the health and safety of waiver recipients and avoid institutionalization. The regulations affect more than 5,000 current recipients of waiver services.
In a joint statement, the department and plaintiff’s attorneys reported that although the parties disagreed on the merits of the claims made by the mentally retarded individuals who filed the suit, "they agreed that the most productive course of action was to reevaluate the needs of all the plaintiffs and to approve funding for all services necessary to protect their health and safety, while allowing plaintiffs to remain in their respective communities and avoid institutionalization. The plaintiffs applaud the willingness of the Commonwealth both to take a fresh look at the needs of these individual plaintiffs and to take new steps to assure appropriate consideration of future requests for mental retardation waiver services. The Commonwealth recognizes that the plaintiffs’ efforts have provided the basis for a constructive dialogue regarding mental retardation waiver services between the department, the community service boards that serve mental retardation waiver clients, and the recipients of mental retardation waiver services."
Mr. Glasberg tells State Health Watch that as a result of the agreement, "the bureaucratic glitches that encumbered the process have been resolved." There had been problems, he says, with the criterion for emergency services and the use of lack of funds as a legitimate reason to deny services.
[Contact Mr. Glasberg at (703) 684-1100, Mary Giliberti of Bazelon at (202) 467-5730, and The Arc of Virginia at (800) 732-9507.]
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