NC health agency appealing ruling on services for disabled

North Carolina's government is appealing a trial judge's order that demands many more community services by certain dates for people with intellectual and developmental disabilities who otherwise live at institutions, the top state health official said Wednesday.

Department of Health and Human Services Secretary Kody Kinsley said the formal challenge is needed because he has “grave concerns” about some of the directives issued Nov. 2 by Superior Court Judge Allen Baddour. The group that was the driving force behind a 2017 lawsuit that led to his order said it was discouraged by Kinsley's challenge.

Kinsley pointed in particular to Baddour’s directive that new admissions at state-run development centers, privately intermediate care facilities, and certain adult care homes must stop as of January 2028 for people with intellectual and developmental disabilities.

The secretary said that could ultimately lead to closures of small group homes, leaving potentially 1,000 or more clients seeking new accommodations while creating instability for people who are happy in their current situations.

“We cannot have a ruling go into place that’s going to bind our hands, that’s going to push people into homelessness, essentially,” Kinsley told reporters. “We’ve got to find a different path.”

Kinsley also on Wednesday unveiled a policy and funding counterproposal of sorts that he said would promote independence for people with such disabilities and choices for services in a deliberate fashion.

Some formal General Assembly legislation would be needed to ultimately reach the $150 million in annual federal and state spending starting next July that the proposal envisions. These requests and others should be in Democratic Gov. Roy Cooper's upcoming budget proposal, the secretary said.

Kinsley said the GOP-controlled legislature appears willing to help improve community services and called 2022 a “year of considerable advancement."

“This plan recognizes the real, sizable investments and I believe puts us on a path for a vision of a very different North Carolina, that instead of pushing people out of safety, gives people choice,” Kinsley told reporters.

Baddour already had ruled in 2020 that too many people with such disabilities were forced to live away from home in violation of state law. In ordering remedies four weeks ago to address that ruling, Baddour told DHHS that at least 3,000 people must be diverted or shifted to community-based programs by early 2031. No one would be forced to move.

He also told DHHS to eliminate by mid-2032 a waiting list of roughly 16,000 people who are qualified to participate in a Medicaid-funded program that helps them live at home or outside of an institution. Baddour’s order also directs DHHS to a shortage of well-paid direct-care workers. Kinsley's summary released Wednesday doesn't identify specific long-term dates to complete initiatives.

The head of the nonprofit Disability Rights North Carolina — a plaintiff in the lawsuit — said the appeal likely will fail and delay “justice for North Carolinians with I/DD (intellectual and developmental disabilities) even longer.”

“It is so deeply disappointing to hear over and over that I/DD services are a priority, but then have progress undermined in this way,” Disability Rights CEO Virginia Knowlton Marcus said in a news release.

The price tag to carry out the judge’s directives isn’t clear, although Disability Rights has suggested it could take hundreds of millions of dollars annually. Federal dollars would cover much of the Medicaid-related services, however.

Disability Rights has said the order would lead private facilities to transition to more community-based services instead, and that the injection of federal funds would generate more jobs and services.

The DHHS proposal in part would spend $36 million next year to help raise wages for direct-support professionals and $24 million to reduce the waiting list for the Medicaid-funded Innovations Waiver option by another 1,000 people.

Kinsley mentioned Keith McDonald, whose 18-year-old daughter lives at TLC, an intermediate care facility in Raleigh for young people with disabilities. McDonald said later Wednesday that he’s worried that denying new admissions even years from now will discourage investments at private facilities and harm their current clients.

“It’ll have a disastrous impact,” McDonald said.

The lawsuit’s lead plaintiff is a western North Carolina woman who had been forced to move into a state-run development center in Morganton when community-based services dried up. She is no longer living at the center.