HDRC and the State of Hawaii Reach a Settlement Agreement on the HDRC v. State of Hawai‘i (Civil No. 03-00524) Lawsuit.
On August 12, 2005, the Hawaii Disability Rights Center and the State of Hawaii signed a Settlement Agreement, officially ending the HDRC v. State of Hawai‘i litigation, and beginning a new period of work to comply with the agreement and offer Home and Community Based Services (HCBS) to people with developmental disabilities who are members of the Makin Class, as well as others waitlisted for, or applying for, HCBS from the Department of Health Developmental Disabilities Division.
Background: The Makin v. State of Hawai‘i (Civil No. 98-00997) Lawsuit.
The Makin v. State of Hawaii class action lawsuit, filed in 1998, was originally comprised of 700 people with developmental disabilities who had been placed on a waitlist for Medicaid-funded Home and Community Based Waiver Services (“HCBS”). Some people with developmental disabilities were waitlisted for services for as long as 8 years. The Plaintiffs sued the Department of Health (DOH), its Director, and the Developmental Disabilities Division (DDD) alleging violations of the community integration regulations of the ADA and Section 504 of the Rehabilitation Act, and Medicaid rules concerning the right to services, timely delivery of services, and due process notification.
The case settled in April of 2000 in favor of the Plaintiffs (the "Makin Class"). The Settlement Agreement signed April 25, 2000 required that a comprehensive plan be developed for keeping the waitlist moving at a reasonable pace, and provided that the original 700 people on the waitlist would receive HCBS services by the end of June 2003. The State pledged to provide the additional $8.75M funding necessary each year to reduce the waitlist.
In 2003, a comprehensive report of the findings of HDRC’s monitoring showed that the State had failed to comply with the terms of the Makin Settlement Agreement. Serious new violations of federal and state law were also identified. The report was revised in December 2003 to include new evidence from the State budget that supported additional claims of violations of federal Medicaid law. Over 1,500 hours were expended by HDRC to review case management files and related records during the monitoring period.
The report and findings were presented in-person to the new director of the Department of Health. HDRC offered to extend the Makin Settlement Agreement to give DOH additional time to comply with its terms. Unfortunately, this offer was rejected. To preserve the rights of the Makin Class members, HDRC decided to re-file in federal court.
Why was it necessary to file the HDRC v. State of Hawai‘i lawsuit?
As a result of the numerous violations uncovered in monitoring Makin Settlement compliance, HDRC filed a second lawsuit against the State of Hawaii on September 29, 2003.
The lawsuit alleged substantial violations of the Makin Settlement Agreement, including failure to provide waiver services to people on the original waitlist; failure to utilize self-determination in the provision of services (as mandated by State law and incorporated into the Settlement Agreement); and the critical failure to develop a comprehensive plan to move the waitlist at a reasonable pace.
The lawsuit included new legal claims that the practice of “deferring” waitlisted individuals is not permitted under Medicaid law, that “deferred” people were denied their due process rights as they were passed over for admission to HCBS.
Other serious new allegations included: (1) The return of $5,000,000 in unused waiver funds to the State Treasury, while at the same time there were people waitlisted for services and unfilled waiver slots were available; and (2) violation of State law by provision of services with 100% State funding when federally-funded services were available.
After first refusing to acknowledge that any problem existed with the state’s Home and Community-Based Waiver Services program, the State entered into early settlement negotiations with HDRC in 2004. After 18 months of negotiation and counter-proposals, the State agreed to all of the remedies requested in the original complaint.
It is significant that the remedies proposed by HDRC on behalf of the seven named Plaintiffs were intended to apply to all qualified people with developmental disabilities who had applied for HCBS. Because of the Defendants' willingness to address systemic problems, HDRC did not find it necessary to move for class action status.
The HDRC Settlement Agreement requires the State to:
- Use their best efforts to amend the Hawai`i Administrative Rules to codify the minimum timelines proposed by the Plaintiffs;
- Use their best efforts to restore the unused waiver funds that were returned to the General Fund;
- Discontinue use of the "deferred" designation;
- Provide written notice to all "deferred" people regarding this lawsuit and its terms of settlement, including offers of a new Individualized Service Plan ("ISP") and assistance from HDRC;
- Complete new ISPs requested by "deferred" people within 6 months from date of request, and provide HCBS within a 90-day period;
- Determine HCBS eligibility within 90 days of the settlement date (or date of application) for people presently on the HCBS waitlist, and, upon being determined eligible, provide HCBS within a second 90-day period;
- Determine HCBS eligibility within 90 days of the date of application, for new HCBS applicants, and, upon being determined eligible, provide HCBS within a second 90-day period;
- Eliminate current intake priorities, in order to conduct all HCBS admissions on a first-in, first-out basis (with exceptions for crisis services and individually-preferred providers);
- Jointly develop with HDRC standardized presentation materials regarding the application process, eligibility criteria, various HCBS offered, plus any other services available;
- Train DDD Case Managers to permit them to identify and implement "wraparound" HCBS services concurrent with other DD/MR programs and services;
- Provide sufficient information to HDRC to verify compliance with the settlement; and
- Meet with HDRC at regular intervals to discuss compliance efforts.
HDRC will continue to monitor the State Defendants' compliance with this settlement in the years to follow.
The following chart provides the timelines established in the HDRC v. State of Hawai‘i Settlement Agreement.
HDRC v. SOH Settlement Agreement Timelines
For people from the original Makin waiver waitlist:
within 30 days from date of settlement (August 12, 2005)
SOH to mail notice to all "deferred" parties re: lawsuit & settlement, offer new ISP & HDRC assistance.
within 30 days from mailing of notice
SOH to provide: a. contact information of "deferred" people who (1) responded to mailing; (2) requested HDRC assistance w/new ISPs; and (3) did not respond to mailing. b. contact information of people on the waitlist with "deferred" status.
within 6 months from written acceptance of the offer of a new ISP
completion of new ISP.
within 90 days from completion of ISP and HCBS eligibility
provision of waiver services.
For non-Makin people currently waitlisted for waiver services:
within 90 days of a. submission of a completed HCBS application; or b. date of settlement, whichever is later
eligibility determination.
within 90 days of affirmative eligibility determination
provision of waiver services.
For new waiver applicants:
within 90 days of submission of a completed HCBS application
eligibility determination.
within 90 days of affirmative eligibility determination
provision of waiver services.
The State and HDRC will work together to do:
within 30 days of date of settlement
joint development of presentation materials regarding: a. application process b. eligibility criteria c. waiver services d. any other DD services
every 6 months
compliance meetings.
2 years from date of settlement
terminate compliance meetings.
For more information on the Settlement Agreement, please email:
Info@HawaiiDisabilityRights.org.
