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NCDHHS appeals judge's order requiring better support for people with disabilities

Ben Schachtman

The 2017 lawsuit was aimed at getting the state to provide community-based support, allowing people to stay in their homes and near family and friends — instead of being forced into institutional settings. The state's Department of Health and Human Services is pushing back against a recent judge's order, saying it has its own plan to achieve that goal.

The North Carolina Department of Health and Human Services has appealed a November Superior Court decision in the Samantha R. et al. case.

The case deals with a disabled person’s right to live in their chosen community, rather than being institutionalized. And a recent court order has required the state to support those individuals more. While the state says the court orders “share the same goal” as NCDHHS, the department doesn’t want to follow the order as written, so it’s pushing back.

Related: Judge's ruling could help people with disabilities; DHHS not so sure


The primary plaintiff, known in court records as Samantha R., along with her co-plaintiffs and Disability Rights North Carolina, originally filed the suit back in May of 2017. The defendants were originally the state of North Carolina, NCDHHS, and Mandy Cohen, who served as NCDHHS secretary for Governor Roy Cooper from 2017 through 2021 – Cohen’s replacement, Kody Kinsley, is now named in her place as the current secretary.

According to court documents, the plaintiffs argued “thousands of North Carolinians with intellectual and/or developmental disabilities (“I/DD”) live segregated, institutionalized, or receive inadequate support to remain integrated in their communities.”

The filings also state that, as of 2017, “over 10,000 North Carolinians were on waitlists for services needed to leave institutions or avoid institutionalization.”

In 2020, the court found that the state was violating the rights of people with I/DD to live in integrated settings if they choose. That would mean the residents could stay in their own homes and communities, rather than being institutionalized.

The Court gave the state time to come up with a plan to fix its violations of these people's rights.

When the state failed to present any solutions, on November 2 of this year, Superior Court Judge R. Allen Baddour entered an injunctive relief order in this case. He required that NCDHHS behave a certain way and follow a set of rules.

The Order mandated that the state must achieve the following goals:

  • The ‘Innovations Waiver’ waiting list must be eliminated in 10 years, which means getting over 16,000 people the services they need. (The Innovations Waiver is a Medicaid program that assists people in getting community-based care.) 
  • The state must effectively resolve the shortage of Direct Support Professionals (“DSPs”) who provide community-based support. 
  • The state must divert or transition 3,000 people who want to leave or avoid institutional settings over the next eight years, and cease new admissions after 6 years (with the exemption of respite or short-term stabilization).
  • The state must provide quarterly reports regarding each measure ordered by the Court, and post data to its website so the disability community has access to timely information about the state's progress.

What’s next

Today, NCDHHS announced they are appealing this Order, stating “While the recent court order shares the same goals as NCDHHS — making community-based services available to those who want them — we are proposing a different plan that is informed by input from family members, providers and multiple community stakeholders and that aligns with our approved Olmstead plan.”

“Olmstead” is a reference to a 1999 U.S. Supreme Court case called Olmstead v. L.C., which related to discrimination against people with mental disabilities. As an outcome of the case, every state is required to have its own “Olmstead plan” to align with the ruling.

All parties involved in this case agree that there must be a more robust community-based service system, but don’t agree with how it should be done. State officials have also expressed concerns that the Superior Court ruling in Samantha R. didn't guarantee budgetary increases — leaving questions, in the state's eyes, about how the expanded support would be funded.

Last month,Disability Rights North Carolina said it would denounce an effort by the state to appeal the case.

“While an appeal by the state would contradict its promises to the disability community, an attempt to appeal is possible based on the litigation positions taken by the state. An appeal would be a signal to the disability community that the state is not fully committed to its expressed goals. If the state attempts to appeal, we will call on the disability community to condemn the hypocrisy and the delay that an appeal could entail. People with I/DD have already heard enough promises and have been waiting too long,” the organization posted.

The case will now likely go to the state’s Court of Appeals, where three-judge panels pulled from a group of 15 judges review the decisions of lower courts.

Camille hails from Long Island, NY and graduated from Boston University with a BS in Journalism and double minors in Classical Civilizations and Philosophy. Her story focus revolves her deep care for children, young adults and mental health. You can reach her at cmojica@whqr.org.