Brain Injury Patients Sue New York

PLATTSBURGH, N.Y. (CN) – Hundreds of people with traumatic brain injuries may be forced out of their community living facilities and placed in institutions, due to a new provision in the state’s Medicaid program, according to a federal class action.




     The class claims say the state Department of Health is violating the Constitution and the Medicaid Act by abruptly transferring scores of “waiver” participants to different service providers, without adequate notice and without ensuring that services will continue.
     They seek an injunction to halt the transfer.
     The Department of Health has administered the Home and Community Based Services Medicaid Waiver for Individuals with Traumatic Brain Injuries since 1995. The waiver uses Medicaid funding to help people adjust to living in the community.
     At least 150 waiver participants will be affected by the new policy, but the plaintiffs say the “actual number of individuals involved is substantially higher.”
     The plaintiffs all receive daily support services through the waiver program so “they can live as independently as possible in the community.”
     “Waiver services are provided based on the participant’s unique strengths, needs, choices and goals,” the complaint states. “The individual is the primary decision-maker and works in cooperation with providers to develop plans for services. This process leads to personal empowerment, increased independence, greater community inclusion, self-reliance and meaningful and productive activities.”
     Now many face the prospect of being confined to an institution, due to an amendment to the TBI Medicaid Waiver that requires that providers be licensed by the Department of Health as a Home Care Services Agency.
     The Department of Health directed 18 to 20 agencies – some with as little as one month notice – to transfer their waiver participants to different, state-approved providers.
     Due to the lack of service providers “to absorb the transitioning waiver participants, some may be forced into institutions,” the class says.
     They say that even for waiver participants who are expected to transfer relatively “smoothly” to another provider, “there will be unavoidable harm to those participants due to the abrupt nature of the transition, loss of familiar care givers, loss of routine, stress, anxiety, emotional outbursts, set backs in addiction control with corresponding negative consequences, and emotional reactivity that could result in self harm to the participant or harm to others.”
     The only named defendant is Richard F. Daines, Commissioner of the New York State Department of Health.
     The plaintiffs are represented by Robert W. Lukow with Legal Services of Central New York, in Syracuse.

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