On September 18, 2008, a child with severe mental and physical disabilities filed suit in the U.S. District Court for the Northern District of Georgia, under the Medicaid Act 42 U.S.C. §1396, and 42 U.S.C. §1983, against the agency that is responsible for administering Medicaid in the state of Georgia. The plaintiff, represented by attorneys from the Georgia Advocacy Office, sought temporary restraining orders, preliminary injunctions, and declaratory and injunctive relief. The plaintiff alleged that the defendant violated his rights and due process in their procedure for deciding how many hours of private duty nursing hours he would receive.

On September 9, 2008, the District Court (Judge Thomas W. Thrash Jr.) granted a temporary restraining order compelling the defendants to provide all hours of private duty nursing that the plaintiff's treating physician had requested (168 hours/week). On November 3rd, the Court (Judge Thrash) granted in part and denied in part the Plaintiff's motion for a preliminary injunction, preventing the defendants from enforcing any of their policies that would limit or reduce the number of private duty nursing hours a patient could receive that were not based on medical necessity. The injunction also decreased the number of hours of nursing the plaintiff received based on a schedule created by a physician working for the defendant.

Following a surgical operation, plaintiff required increased nursing hours and filed for a second temporary restraining order and preliminary injunction. On February 17, 2010, the District Court (Judge Thrash) granted these motions, compelling the defendants to provide significantly increased hours of private nursing.

Counsel for the plaintiff filed its second, and final, amended complaint on September 27, 2011. This complaint named five plaintiffs, all of whom had significant health problems. This final complaint reaffirms the allegations from the first while adding a Fifth and Fourteenth Amendment cause for action, as well as the Americans with Disabilities Act's (ADA) prohibition on policies that have the discriminatory effect of segregating individuals with disabilities from the general population. Their argument is that the non-medically based denial of private, in-home nursing care will lead to the institutionalization, and thus segregation of the plaintiffs. See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 119 S. Ct. 2176, 144 L. Ed. 2d 540 (1999).

The District Court (Judge Thrash) granted a motion on behalf of the only plaintiff who was eighteen years old for a temporary restraining order compelling the defendants to provide the nursing care requested by a treating physician. On June 15, 2012, the District Court (Judge Thrash) entered an order and opinion granting a permanent injunction that extended the effect of that restraining order. The defendant initially appealed this decision but it was voluntarily dismissed.

On August 2, 2012, the District Court (Judge Thrash) denied the plaintiff's motion to certify the class because the plaintiffs failed to provide any evidence that indicated how many people would be able to make the same allegations against the defendant.

The defendant filed a motion for partial summary judgment on January 30, 2013, claiming that the plaintiffs had not provided enough evidence to prove its allegations regarding the Medicare Act, the Fifth and Fourteenth Amendments, and the ADA. The United States filed a brief as an interested party hoping to clarify the law regarding the ADA claim, urging the District Court to deny the motion for partial summary judgment. On May 22, 2013, the District Court (Judge Thrash) issued an order granting the motion for partial summary judgment as it pertained to some elements of the Medicare Act claim as well as the Fifth and Fourteenth Amendment claims. The Court (Judge Thrash) denied the motion with regard to other Medicare Act allegations in addition to the ADA claim.

On August 5, 2013, the defendants offered the four remaining defendants a settlement consisting of individual nursing care plans and admitting no fault. Two of the defendants accepted this settlement offer.

On September 27, 2013, following a three day bench trial, the District Court (Judge Thrash) issued an opinion and order prohibiting the defendant from reducing the number of hours of private nursing care below eighteen per day, for a period of 180 days or until further order of the court. This decision applied to both of the plaintiffs.

On October 25, 2013, the defendant filed to appeal this order and the order granting the permanent injunction to the eighteen-year-old plaintiff (US Court of Appeals Eleventh Circuit case # 13-14950). The appeal was declared moot with regard to two of the plaintiffs, one of whom passed away, while the other turned twenty-one, precluding him from the relevant Medicare statute. The appeal of the order for the original plaintiff is ongoing. Any decision regarding his motions for costs and attorney's fees is stayed pending appeal.

Benjamin St. Pierre - 09/26/2014


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