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.

As of January 13, 2019, the plaintiffs had yet to file for an award of attorneys' fees and costs.

Kate Craddock - 09/29/2015
Eva Richardson - 01/12/2019


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