Case: Michael T. v. Bowling

2:15-cv-09655 | U.S. District Court for the Southern District of West Virginia

Filed Date: July 9, 2015

Closed Date: Aug. 21, 2019

Clearinghouse coding complete

Case Summary

On July 9, 2015, West Virginia residents with intellectual and developmental disabilities who participate in West Virginia's I/DD Waiver Program filed this class action lawsuit in the United States District Court for the Southern District of West Virginia. The plaintiffs sued the West Virginia Department of Heath and Human Resources (DHHR) under 42 U.S.C. § 1983, Title II of the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act. The plaintiffs, represented by Mountain S…

On July 9, 2015, West Virginia residents with intellectual and developmental disabilities who participate in West Virginia's I/DD Waiver Program filed this class action lawsuit in the United States District Court for the Southern District of West Virginia. The plaintiffs sued the West Virginia Department of Heath and Human Resources (DHHR) under 42 U.S.C. § 1983, Title II of the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act. The plaintiffs, represented by Mountain State Justice, sought injunctive and declaratory relief claiming that the West Virginia DHHR had not followed statutory guidance in determining the amount of waiver support they receive under the I/DD Waiver Program. Individuals under the I/DD waiver program receive waiver benefits which help them live outside institutions and be integrated into the community.

The plaintiffs filed an amended complaint on September 28, 2015, alleging that in late September, DHHR changed the policy to appeal for additional benefits beyond a calculated level and began automatically or routinely denying efforts to move through the process to reinstate benefit levels above the calculations. They alleged they were at risk of being institutionalized or losing their placements in community-living settings.

On October 13, 2015, DHHR filed a motion to dismiss the plaintiffs' claims under the ADA and Section 504. DHHR also moved to dismiss the claims of two plaintiffs as not ripe for judicial review.

On November 12, 2015, the plaintiffs filed a motion for class certification and a motion for a preliminary injunction. On September 13, 2016, District Judge Thomas E. Johnston granted in part the plaintiffs' motion for a preliminary injunction to the extent that the requested preliminary injunction restored the named plaintiffs' individualized waiver benefits. 2016 WL 4870284. The Court found that each of the relevant factors weighed in favor of granting a preliminary injunction: (1) plaintiffs made a sufficient showing that they had a high likelihood of success in their claim that the defendant infringed on their procedural due process rights; (2) plaintiffs demonstrated that they were likely to suffer irreparable harm because the denial of funds could deprive them of needed services and potentially result in institutionalization; (3) given the fact that the plaintiffs were some of the most vulnerable members of society, the harm to them outweighed the state's budgetary considerations; and (4) plaintiffs demonstrated that a preliminary injunction was in the public interest.

On September 30, 2016, Judge Johnston denied the defendant's motion to dismiss and granted the plaintiffs' motion for class certification. The class was defined as "All persons who were or will be at any time on or after October 1, 2014, qualified individuals with disabilities resident in West Virginia who are eligible recipients of I/DD Home and Community-Based Waiver program services and subject to a benefit and service eligibility process utilizing APS’s proprietary budget-calculation algorithm."

Following class certification, the plaintiffs filed a motion to extend the injunctive relief to class members. During the briefing period for the motion to extend, the defendant filed a motion to modify or vacate the preliminary injunction. The state had developed a new service authorization system, which it argued satisfied the Court’s concerns expressed when granting the preliminary injunction. Specifically, the new authorization system replaced the prior proprietary algorithm with a budget matrix employing a number of clearly identified variables based on a combination of a member’s living situation and answers to specific questions during the member’s annual assessment. Additionally, the state updated its budget letter, created an exceptions process to resolve disputes, and refined policies to make it clear that services in excess of the budget can be authorized when necessary to avoid a heightened risk of institutionalization.

On September 20, 2017, Judge Johnston denied without prejudice the plaintiffs' motion to extend, finding that the plaintiffs failed to make an adequate preliminary injunction showing in light of DHHR's new authorization system. At that time, the Court declined to resolve DHHR's motion to vacate or modify because the defendant had indicated an intention of implementing the new authorization system, which would necessitate another round of briefing.

On March 26, 2018, Judge Johnston granted the defendant's motion to modify or vacate to the extent that it requested that the Court modify the injunction to allow DHHR to implement the proposed service authorization system as to the named plaintiffs. 2018 WL 1513295. The Court found that the due process deficiencies present in the old system were not present in the new system. The new system involved budget determinations that were individualized and based on transparent and discernible standards, and it gave plaintiffs a way to challenge errors in budget calculations and appeal adverse decisions.

DHHR filed a motion to dismiss, and in the alternative a motion for summary judgment, on July 2, 2018. On that same date, the plaintiffs filed a motion for partial summary judgment. On September 25, 2018, Judge Johnston denied the plaintiffs' motion and granted in part DHHR's motion. The Court granted DHHR's motion to dismiss the plaintiffs' claims as moot, but denied DHHR's motion insofar as it requested summary judgment. The Court found that the plaintiffs' claims against DHHR were moot because the system challenged in the complaint had been replaced. DHHR had met its burden of showing that there was no probability that it would return to the old system and it had overcome the voluntary cessation exception to mootness. The Court said that any challenges to the new system would be better addressed in a subsequent lawsuit.

On January 17, 2019, the plaintiffs filed a motion for an award of attorneys' fees and costs. In the next few months, the parties filed motions to extend the time to respond to the motion for attorneys' fees and cost, which were granted. Then on August 13, 2019, the plaintiffs filed a motion to withdraw their motion for attorneys' fees and costs because the parties had resolved the issue privately. The next day, Judge Johnston granted the motion to withdraw the motion for attorneys' fees and denied as moot the plaintiffs' motion for attorneys' fees. On August 19, 2019, the parties filed a stipulation of dismissal with prejudice, and two days later Judge Johnston dismissed the case with prejudice pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure. The case is now closed.

Summary Authors

Kate Craddock (9/29/2015)

Eva Richardson (1/12/2019)

Sabrina Glavota (6/17/2020)

People

For PACER's information on parties and their attrorneys, see: https://www.courtlistener.com/docket/4538313/parties/t-v-bowling/


Judge(s)

Johnston, Thomas E. (West Virginia)

Attorneys(s) for Plaintiff

Milnes, Lydia C. (West Virginia)

Pomponio, Bren (West Virginia)

Smith, Gary M. (Ohio)

Attorneys(s) for Defendant

Barker, Shruti C. (District of Columbia)

Brown, Caroline M. (District of Columbia)

Peisch, Philip (District of Columbia)

Stitzinger, Kimberly L. (West Virginia)

Other Attorney(s)

Active

Judge(s)

Johnston, Thomas E. (West Virginia)

Attorneys(s) for Plaintiff

Milnes, Lydia C. (West Virginia)

Pomponio, Bren (West Virginia)

Smith, Gary M. (Ohio)

Attorneys(s) for Defendant

Barker, Shruti C. (District of Columbia)

Brown, Caroline M. (District of Columbia)

Peisch, Philip (District of Columbia)

Stitzinger, Kimberly L. (West Virginia)

Other Attorney(s)

Shalhoup, Julia B (West Virginia)

Documents in the Clearinghouse

Document

2:15-cv-09655

Docket

T. v. Bowling

Aug. 21, 2019

Aug. 21, 2019

Docket
1

2:15-cv-09655

Complaint

T et al v. Bowling et al

July 9, 2015

July 9, 2015

Complaint
11

2:15-cv-09655

Memorandum of Law in Support of Defendant's Motion to Dismiss Plaintiff's Complaint

T. et al v. Bowling et al

Sept. 14, 2015

Sept. 14, 2015

Pleading / Motion / Brief
13

2:15-cv-09655

Amended Complaint

T et al v. Bowling et al

Sept. 28, 2015

Sept. 28, 2015

Complaint
122

2:15-cv-09655

Memorandum Opinion and Order

T. v. Bowling

Sept. 13, 2016

Sept. 13, 2016

Order/Opinion
170

2:15-cv-09655

Memorandum Opinion and Order

T. v. Bowling

March 26, 2018

March 26, 2018

Order/Opinion
196

2:15-cv-09655

Memorandum Opinion and Order

T. v. Crouch

Sept. 25, 2018

Sept. 25, 2018

Order/Opinion

Resources

Docket

See docket on RECAP: https://www.courtlistener.com/docket/4538313/t-v-bowling/

Last updated Aug. 6, 2022, 3:22 a.m.

ECF Number Description Date Link Date / Link
121

ORDER telephonic status conference set for 9/20/2016 at 2:00 p.m. in Charleston before Judge Thomas E. Johnston. Signed by Judge Thomas E. Johnston on 9/13/2016. (cc: counsel of record; any unrepresented party) (taq)

Sept. 13, 2016

Sept. 13, 2016

PACER
122

MEMORANDUM OPINION AND ORDER granting in part the 28 MOTION for Preliminary Injunction, to the extent Plaintiffs request a preliminary injunction restoring the named Plaintiffs' 2014 individualized waiver benefits; the Court PRELIMINARILY ENJOINS AND ORDERS Defendant to reinstate the named Plaintiffs' individualized I/DD Waiver Program budgets to the amounts Plaintiffs received in 2014, but only for those Plaintiffs that received a reduction in their individualized budgets after 2014; this preliminary injunction to remain in force and effect pending the outcome of this action; the Clerk to UNSEAL and DOCKET the following pages within Exhibit 2 (Nisbet Declaration) and its Addendum attached to Defendant's 1/8/2016 51 Motion for Leave to File under Seal: ECF No. 51-1 at 19, 124; ECF No. 51-2 at 1546; denying as moot 94 MOTION to Strike; denying as moot 96 MOTION to Quash Subpoena; denying as moot 10 MOTION to Dismiss Plaintiffs' Complaint; granting 24 MOTION for Leave to File under Seal; granting 30 MOTION for Leave to File under Seal; granting in part 51 MOTION for Leave to File under Seal, to the extent that the Declaration and Addendum contain protected health and other confidential information of the Plaintiffs; within Exhibit 2, Ms. Nisbet's Declaration, pages 1 through 9 shall be made public; granting 101 MOTION for Leave to File the Declaration of Cynthia Bean; directing that the Rule 65(c) bond requirement is WAIVED as to the preliminary injunction provided herein. Signed by Judge Thomas E. Johnston on 9/13/2016. (cc: counsel of record; any unrepresented party) (taq)

Sept. 13, 2016

Sept. 13, 2016

RECAP
123

EXHIBIT 2 (Nisbet Declaration 1-9) filed pursuant to to the Court's 122 Order, re: 51 Motion for Leave to File Under Seal. (taq)

Sept. 13, 2016

Sept. 13, 2016

PACER
124

ADDENDUM (hearing request form) filed pursuant to the Court's 122 Order, re: 51 Motion for Leave to File Under Seal. (taq)

Sept. 13, 2016

Sept. 13, 2016

PACER
125

DECLARATION of Cynthia Beane filed pursuant to the Court's 122 Order, re: 28 Motion for Preliminary Injunction. (taq)

Sept. 13, 2016

Sept. 13, 2016

PACER
169

MEMORANDUM OPINION AND ORDER denying without prejudice plaintiffs' 140 MOTION to Extend Preliminary Injunctive Relief to Class Members. Signed by Judge Thomas E. Johnston on 9/20/2017. (cc: counsel of record; any unrepresented party) (taq)

Sept. 20, 2017

Sept. 20, 2017

RECAP
170

MEMORANDUM OPINION AND ORDER granting in part and denying in part 155 MOTION to Vacate or Modify Preliminary Injunction Order; granting in part the Motion to Vacate or Modify Preliminary Injunction Order to the extent Defendant requests that the Court lift the injunction to allow DHHR to begin implementing the proposed service authorization system as to the named Plaintiffs; otherwise denying said motion; the Court MODIFIES its 122 memorandum opinion and order entered on 9/13/2016 as f ollows: the preliminary injunction will expire individually as to each named Plaintiff on the individual's first anchor date following this memorandum opinion and order's entry unless the anchor date falls within 90 days of entry in which case the preliminary injunction will expire on the individual's second anchor date subsequent to this order's entry; Defendant to provide the Court with an updated status report as to the new system's implementation within 30 days of this memorandum opinion and order's entry. Signed by Judge Thomas E. Johnston on 3/26/2018. (cc: counsel of record; any unrepresented party) (taq)

March 26, 2018

March 26, 2018

RECAP
173

Telephone Conference

May 9, 2018

May 9, 2018

PACER
174

Judge Johnston's Amended Scheduling Order

May 10, 2018

May 10, 2018

PACER
175

Amend

1 Proposed Order

View on PACER

June 15, 2018

June 15, 2018

PACER
176

Response In Opposition

June 21, 2018

June 21, 2018

PACER
177

Notice Of Change Of Attorney Information

June 21, 2018

June 21, 2018

PACER
178

Order on Motion / Application / Petition to Amend

June 25, 2018

June 25, 2018

PACER
179

Dismiss

1 Statement of Undisputed Facts

View on PACER

2 Declaration

View on PACER

3 Proposed Order

View on PACER

July 2, 2018

July 2, 2018

RECAP
180

Memorandum In Support

July 2, 2018

July 2, 2018

PACER
181

Exceed Page Limit (Do not use for Motion for Leave to File)

1 Proposed Order

View on PACER

July 2, 2018

July 2, 2018

PACER
182

Partial Summary Judgment

1 DHHR Chapter 513 (thru 1/31/18)

View on PACER

2 DHHR Chapter 513 (current)

View on PACER

3 Affidavit of Tracey G

View on PACER

4 Affidavit of Teresa I

View on PACER

5 Affidavit of Robert J

View on PACER

6 Affidavit of Charles M

View on PACER

7 DHHR Chapter 511

View on PACER

8 Affidavit of Connie Walsh

View on PACER

9 Exhibit to Walsh Declaration 8A

View on PACER

10 DHHR New Methodology Power Point

View on PACER

11 Affidavit of Victoria B

View on PACER

12 Internet Materials DHHR website

View on PACER

July 3, 2018

July 3, 2018

PACER
183

Memorandum In Support

July 3, 2018

July 3, 2018

PACER
184

Strike

July 31, 2018

July 31, 2018

PACER
185

Strike

July 31, 2018

July 31, 2018

PACER
186

Memorandum In Opposition

1 Exhibit 1

View on PACER

July 31, 2018

July 31, 2018

PACER
187

Motion To Seal - General - SEALED (Public Docket Entry ; Sends NEF ; No Document Access)

July 31, 2018

July 31, 2018

PACER
188

Memorandum In Opposition

1 Exhibit 1

View on PACER

2 Exhibit 2

View on PACER

3 Exhibit 3

View on PACER

4 Exhibit 4

View on PACER

5 Exhibit 5

View on PACER

6 Exhibit 6

View on PACER

7 Exhibit 7

View on PACER

8 Exhibit 8

View on PACER

9 Exhibit 9

View on PACER

Aug. 1, 2018

Aug. 1, 2018

PACER
189

Response In Opposition

1 Declaration of Michael Wolfe

View on PACER

2 Declaration of Teresa I.

View on PACER

3 Letter

View on PACER

Aug. 1, 2018

Aug. 1, 2018

PACER
190

Leave to File Document

1 Proposed Order

View on PACER

Aug. 8, 2018

Aug. 8, 2018

PACER
191

Response In Opposition

Aug. 14, 2018

Aug. 14, 2018

PACER
192

Reply To Response

1 Exhibit 1

View on PACER

Aug. 15, 2018

Aug. 15, 2018

PACER
193

Motion To Seal - General - SEALED (Public Docket Entry ; Sends NEF ; No Document Access)

Aug. 15, 2018

Aug. 15, 2018

PACER
194

Response In Support

1 Declaration of Rebecca Curtis

View on PACER

2 Declaration of Charles M with exhibit

View on PACER

3 Declaration of Robert J

View on PACER

4 Declaration of Tracey G

View on PACER

5 Declaration of Theresa I

View on PACER

Aug. 15, 2018

Aug. 15, 2018

PACER
195

Proposed Order

Aug. 15, 2018

Aug. 15, 2018

PACER
196

MEMORANDUM OPINION AND ORDER The 179 Motion to Dismiss or, in the Alternative, Motion for Summary Judgment insofar as it requests that this Court dismiss Plaintiffs' claims as moot is GRANTED IN PART and the motion insofar as it requests summa ry judgment is DENIED; the 182 Motion for Partial Summary Judgment is DENIED; this case is DISMISSED and the Clerk is directed to remove this matter from the Court's docket. Signed by Judge Thomas E. Johnston on 9/25/2018. (cc: counsel of record; any unrepresented party) (kp)

Sept. 25, 2018

Sept. 25, 2018

RECAP
197

Notice Of Change Of Address

Oct. 2, 2018

Oct. 2, 2018

PACER
198

Notice (Other)

Oct. 2, 2018

Oct. 2, 2018

PACER
201

Extend Time To File Document

1 Proposed Order

View on PACER

Dec. 17, 2018

Dec. 17, 2018

PACER
202

Order on Motion / Application / Petition to Extend Time to File Document

Dec. 20, 2018

Dec. 20, 2018

PACER
209

Order on Motion / Application / Petition to Extend Time to File Response/Reply

March 4, 2019

March 4, 2019

PACER
210

Extend Time To File Response/Reply

1 Proposed Order

View on PACER

March 26, 2019

March 26, 2019

PACER
211

Order on Motion / Application / Petition to Extend Time to File Response/Reply

April 2, 2019

April 2, 2019

PACER
212

Stay - General

April 17, 2019

April 17, 2019

PACER
213

Order

April 17, 2019

April 17, 2019

PACER
214

Status Report

May 17, 2019

May 17, 2019

PACER
215

Withdraw

Aug. 13, 2019

Aug. 13, 2019

PACER
216

Order on Motion / Application / Petition for Attorney Fees

Aug. 14, 2019

Aug. 14, 2019

PACER
217

Stipulation Of Dismissal

Aug. 19, 2019

Aug. 19, 2019

PACER
218

Order

Aug. 21, 2019

Aug. 21, 2019

PACER

Case Details

State / Territory: West Virginia

Case Type(s):

Public Benefits/Government Services

Special Collection(s):

Olmstead Cases

Multi-LexSum (in sample)

Key Dates

Filing Date: July 9, 2015

Closing Date: Aug. 21, 2019

Case Ongoing: No

Plaintiffs

Plaintiff Description:

West Virginia residents with intellectual and developmental disabilities, who participate in West Virginia’s I/DD Waiver Program: "All persons who were or will be at any time on or after October 1, 2014, qualified individuals with disabilities resident in West Virginia who are eligible recipients of I/DD Home and Community-Based Waiver program services and subject to a benefit and service eligibility process utilizing APS’s proprietary budget- calculation algorithm."

Plaintiff Type(s):

Private Plaintiff

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: Yes

Class Action Outcome: Granted

Defendants

West Virginia Department of Health and Human Resources (Charleston), State

Defendant Type(s):

Hospital/Health Department

Jurisdiction-wide

Case Details

Causes of Action:

42 U.S.C. § 1983

Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12111 et seq.

Section 504 (Rehabilitation Act), 29 U.S.C. § 701

Constitutional Clause(s):

Due Process

Availably Documents:

Trial Court Docket

Complaint (any)

Injunctive (or Injunctive-like) Relief

Non-settlement Outcome

Outcome

Prevailing Party: Plaintiff

Nature of Relief:

Preliminary injunction / Temp. restraining order

Source of Relief:

Settlement

Litigation

Form of Settlement:

Private Settlement Agreement

Voluntary Dismissal

Content of Injunction:

Preliminary relief granted

Issues

General:

Funding

Housing assistance

Placement in mental health facilities

Disability:

Least restrictive environment

Mental Disability:

Intellectual/developmental disability, unspecified

Medical/Mental Health:

Intellectual/Developmental Disability

Type of Facility:

Government-run

Benefit Source:

Medicaid