Cyrus ex rel. McSweeney v. Nusbaum Southern District of West Virginia
By: Litigation Team
In 2004, a class of recipients of West Virginia’s Medicaid HCBS waiver program for older adults and people with disabilities was granted a preliminary injunction that restored HCBS benefits that had been terminated the year before and required the state to provide adequate notice that explained the reasons for any further denials. Plaintiffs’ case included due process claims regarding the inadequate notice and lack of ascertainable standards. For the 20 years prior, the State had conducted annual eligibility determinations for the waiver program using an announced policy and if benefits were terminated, beneficiaries received notice outlining the specific reasons for the denial. Plaintiffs challenged the 2003 changes to this process, which created a hurried process that often failed to get necessary information about the individual. At the core of the challenge was the failure to provide the reasons for termination or an explanation of the assessments findings with the termination notice; this information was only provided if an individual requested a fair hearing. However, even at the hearing plaintiffs could not confront the reviewing doctor of the assessment. The District Court found that the time period allotted to perform the assessment was insufficient and that the notices provided were flawed and inadequate because they did not set forth sufficient information about the reasons for termination.
The parties filed a settlement agreement in 2005 that required changes to the assessment process, including timing and scheduling the home visit for people with identified guardians or legal representatives only if the guardian, contact person, or legal representative would be present. The agreement also required a notice of potential denial with a two-week opportunity to provide supplemental information. The agreement also required the final denial to include the reason for the decision, applicable policy manual section, advise the individual of their right to appeal, and include a copy of the person’s assessment, relevant policy, and any subsequent information submitted.