SC high court refuses to suspend cuts for disabled

COLUMBIA — The South Carolina Supreme Court refused today to suspend cuts in care for residents with disabilities while it considers a lawsuit that alleges officials illegally diverted money meant for services.

Writing for the court, Judge Costa Pleicones denied a request from advocates for the disabled to prohibit reductions to in-home services from taking effect Friday.

"I'm devastated for the families. This is going to be a disaster," said attorney Patricia Harrison, an advocate for the disabled. "I'm hoping that when we have a hearing on the merits, and an opportunity to respond to the claims made by the defendants, the court will restore the services."

The decision came shortly after the state responded to a lawsuit by Harrison and two other attorneys accusing the Department of Disabilities and Special Needs of illegally diverting federal stimulus money meant for services into a savings account.

The lawsuit filed Dec. 23 against Gov. Mark Sanford, the agency and the state's budget oversight board asked the state's high court to immediately suspend the cuts and restore the more than $30 million transferred to savings for later health care spending.

Attorneys for the state contend that while the advocates may disagree with lawmakers' decisions, they did nothing illegal.

They said South Carolina hasn't reduced the number of residents served through the Medicaid programs, and that any money put into a savings account came from state revenue, not the federal stimulus. They also dispute that limitations on in-home care will force people into institutions.

The "claim that many persons stand in danger of being institutionalized is grossly overstated," wrote attorney William Davidson. The agency "is not aware of any person who is likely to be institutionalized as a result of the changes."

The changes, approved by the federal government Nov. 9, include capping the hours of some personal care and companionship that people with mental disabilities receive to 28 hours weekly, and capping their at-home nursing to 56 hours weekly. Previously, there were no limits on the services. The service hours for each person depend on the severity of his or her disability.

More than half of states have such limits, David Goodell, the agency's operations director, said in an affidavit.

He said the changes applied to 10 percent of those served in the programs. Families could apply to the agency for a waiver if they meet certain conditions, such as a severe disability that requires constant attention. Goodell said 77 of 85 applications for exceptions were approved, so those patients are exempt from the cuts.

Goodell said the agency remains "committed to avoiding" institutionalization, noting that between 1994 and 2008, the state reduced the number of people in institutions by 53 percent, despite a 485 percent increase in the number served.

Officials have said the service reductions stem from a series of state budget cuts since October 2008.

The state argues the nine adult plaintiffs, identified by first name and a last initial, will see minimal changes: one has had a one-hour-per-day reduction in care, while another's nutritional supplement has been reduced from 2½ to two cases monthly — the new maximum. Another plaintiff has successfully applied for an exception, so there will be no reduction, while another has appealed.

The rest aren't affected by the Jan. 1 changes, according to the state. But Harrison said they're hurt by the elimination of physical and speech therapy programs, which can prevent disabled adults from choking.

"All you have to do is talk to some of these families who have been informed their services will be cut Jan. 1 to know whether there's a threat of immediate harm," Harrison said.

She argues Congress meant for states to maintain the level of service, not just the number of people served.

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