March 30, 2022•Press Release
Disability Rights Pennsylvania Files Complaint Challenging Cuts to Services that Risk People with Disabilities Remaining in the Community
Disability Rights Pennsylvania Files Complaint
Challenging Cuts to Services that Risk People with Disabilities
Remaining in the Community
For immediate release
March 30, 2022
Shanon S. Levin, Managing Attorney – Litigation
Disability Rights Pennsylvania
(215) 238-8070 ext. 224
Yesterday, Disability Rights Pennsylvania (“DRP”), the protection and advocacy organization designated by the Commonwealth of Pennsylvania under federal law to protect the rights of individuals with disabilities, filed a Complaint with the U.S. Department of Health & Human Services’ Office of Civil Rights against Pennsylvania’s Department of Human Services (“DHS”) to challenge DHS’s policies and practices that have resulted in substantial reductions to personal assistance services for Pennsylvanians with disabilities enrolled in the Medicaid Community HealthChoices Waiver (“CHC Waiver”). The CHC Waiver is available for adults who need a nursing facility level of care but prefer to live in the community with supports. Personal assistance services help CHC Waiver participants with their everyday personal tasks such as bathing, toileting, dressing, preparing meals, and eating, to ensure their safety at home and in the community, and to participate in community life. The lack of adequate personal assistance services places CHC Waiver participants at significant risk of having to move to a nursing home or of being isolated in their homes and unable to participate in community activities in violation of Title II of the American with Disabilities Act (“ADA”), 42 U.S.C. §§12101-12134,Section 504 of the Rehabilitation Act (“RA”), 29 U.S.C. § 794(a), and Section 1557 of the Patient Protection and Affordable Care Act (“ACA”).
As set forth in the Complaint, which can be accessed here, V.L., a woman in her 30s with and multiple cognitive and physical health disabilities, faces institutionalization because her personal assistance services were reduced to a level well below what she needs contrary to the recommendation of her treating physician. Due to her disabilities, V.L. needs extensive personal assistance services to assist her to transfer to and from bed and her wheelchair; to prepare her meals and feed her; to bathe herself (multiple times daily due to incontinence and vomiting); to supervise her safety when she becomes disoriented and tries to leave the house; to prevent falls when she tries to transfer from her wheelchair; and to enable her to participate in community activities, such as visiting family and participating in events at her toddler-aged son’s preschool.
In December 2020, V.L.’s managed care organization (“MCO”) – which contracts with DHS to implement the CHC Waiver – reduced her personal assistance services from 63 hours per week to 28 – a reduction of 56%. It did so without explanation and without any improvement in her conditions or ability to care for herself. V.L. was hospitalized for stroke-like symptoms in August 2021 and despite going through the humiliating process of explaining her needs to her MCO multiple times – needs her neurologist described as requiring “constant help around the clock” – the MCO approved only four hours per day of personal assistance services. While V.L.’s caregiver, who is her partner, is willing provide much of the care she needs unpaid, he cannot for financial reasons continue to provide full-time, around-the-clock care for V.L. while only being paid for four hours per day. Instead, if V.L’s personal assistance services are not restored, he will need to work outside the home as he did prior to becoming V.L’s full-time caregiver to support himself, V.L., and their three-year-old son.
V.L.’s situation is, unfortunately, not unique. DRP has represented a number of other CHC Waiver participants who were subject to reductions in their personal assistance services – decisions unrelated to any improvement in their conditions or changes in their need for services.
“DHS has an obligation under federal law to ensure that people with disabilities enrolled in the CHC Waiver are provided with the services they need to continue to live in the community and to enjoy community life,” said Shanon S. Levin, DRP’s Managing Attorney – Litigation. “Under the law, CHC Waiver participants cannot be compelled to recruit people who are willing and able to provide unpaid support to offset DHS’s responsibility to ensure that services are provided. As a result of reductions in personal assistance services, people with disabilities in the CHC waiver program live in fear that they will be unlawfully forced into an institution.” Ms. Levin added that a CHC Waiver participant’s access to personal assistance services should not depend on their ability to secure counsel to mount legal challenges to unjustified cuts in those services.
DRP is seeking the restoration of V.L.’s personal assistance services. In addition, on behalf of Pennsylvanians with disabilities, DRP is also asking that DHS be required to ensure that its managed care organizations authorize personal assistance services sufficient to meet the needs of participants, that standards for calculating personal assistance services are clear and transparent, that DHS use lawful standards in making decisions, and the explanations for reductions or denials are meaningful and individualized.