USCA4 Appeal: 22-1069 Doc: 70 Filed: 06/06/2023 Pg: 1 of 6
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-1069
RICHARD STOGSDILL; NANCY STOGSDILL, Parent of Richard Stogsdill, on
behalf of themselves and other similarly situated persons,
Plaintiffs - Appellants,
and
ROBERT LEVIN; MARY SELF, Parent of Robert Levin, on behalf of themselves
and other similarly situated persons,
Plaintiffs,
v.
SOUTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Defendant - Appellee,
and
KATHLEEN SEBELIUS; CYNTHIA MANN; JOHN DOES 1-20; CMS;
ANTHONY KECK,
Defendants.
Appeal from the United States District Court for the District of South Carolina, at
Columbia. Joseph F. Anderson, Jr., Senior District Judge. (3:12−cv−00007−JFA)
Submitted: February 22, 2023 Decided: June 6, 2023
Before AGEE, HARRIS, and QUATTLEBAUM, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
Patricia Logan Harrison, Cleveland, South Carolina, for Appellants. Damon C.
Wlodarczyk, RILEY, POPE & LANEY, LLC, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In 2012, Richard Stogsdill, Robert Levin and their parent caregivers sued the South
Carolina Department of Health and Human Services and related individual defendants
(collectively, the “SCDHHS”) in the District of South Carolina seeking declaratory and
injunctive relief. On multiple grounds, they challenged South Carolina’s Medicaid waiver
program, established under 42 U.S.C. § 1396n(c), which provides home and community-
based services to certain individuals with severe disabilities and allows individuals to avoid
institutionalization. Stogsdill and Levin, two severely disabled individuals, receive such
medical equipment and services. Following a bench trial and extensive motions practice,
the district court entered judgment granting the plaintiffs’ request for declaratory relief as
to a determination about the provision of a single piece of medical equipment, a water
walker, and denied all other requested relief. Stogsdill, Levin and their parent caregivers
appealed. Considering the entire record and applicable law, we affirm.
In 2010, the SCDHHS implemented amendments to the waiver program that capped
certain community-based services and eliminated others. As a result, Stogsdill and Levin
experienced a reduction in the services they received. Stogsdill moved for the
reconsideration of the reduction of services provided to him and, after the denial of that
motion, appealed administratively and to the South Carolina Court of Appeals. Levin did
not request such reconsideration.
Stogsdill, Levin and their parent caregivers also brought this action in federal court
with a lengthy list of claims against the SCDHHS for alleged violations of the Americans
with Disabilities Act (“ADA”), Section 504 of the Rehabilitation Act, 42 U.S.C. § 1983,
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the Medicaid Act, the Administrative and Procedures Act of the State of South Carolina
and the Supremacy and Due Process Clauses of the United States Constitution. In the
following years, the parties have engaged in significant motions practice and the district
court has conducted several bench trials. The court issued multiple orders that have
narrowed the issues, claims, and parties in the case. And we have considered two prior
appeals of the district court’s decisions.
The last time the case was before us, in March 2019, we affirmed the careful and
thoughtful judgments of the district court in nearly all respects but remanded Stogsdill’s
claims against the state defendants which the district court declined to consider based on
abstention principles in light of parallel proceedings taking place in state court. Stogsdill v.
Azar, 765 F. App’x 873, 877 (4th Cir. 2019).
After we remanded on that limited issue, the district court considered the remaining
claims. It dismissed most of those claims based on a combination of preclusion, the
outcome of state court litigation and a consent order. But as to the remaining claims, it
conducted another bench trial. Following the trial, the district court denied all requested
relief except for Stogsdill’s request for declaratory relief as to the reasonable promptness
provision of the Medicaid Act set forth at 42 U.S.C. § 1396a(a)(8) with respect to
Stogsdill’s specific request for a water walker, which it granted.
The district court also determined that the SCDHHS provided notice and an
opportunity for a fair hearing with respect to the requested medical equipment in
accordance with 42 U.S.C. § 1396a(a)(3) and the regulations. In sum, other than as to the
provision of the water walker, the district court concluded that Stogsdill, Levin and their
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parent caregivers failed to carry their burden of proof showing entitlement to any relief as
to any remaining claims. The district court also denied their motion to alter or amend the
judgment. Stogsdill, Levin and their parent caregivers appealed that order as well as any
other appealable orders below. JA8559; JA8570.
On appeal, Stogsdill, Levin and their parent caregivers argue that the SCDHHS
violated the integration mandate of the ADA and the Rehabilitation Act by failing to make
reasonable modifications in the State’s programs, and that the district court erred in its
rulings concerning these provisions. They also argue that the SCDHHS violated their
constitutional and statutory rights under 42 U.S.C. § 1983, including rights guaranteed
under the Constitution of the United States and the Medicaid Act, particularly the
reasonable promptness mandates at 42 U.S.C. § 1396a(a)(3) and 42 U.S.C. § 1396a(a)(8)
and the requirements of 42 U.S.C. § 1396n(c)(2) to assure the financial accountability.
But in their opening brief, Stogsdill, Levin and their parent caregivers advance only
conclusory arguments and fail to dispute the district court’s reasoning or to articulate any
meritorious basis for reversal of the court’s judgment. This constitutes waiver under our
precedent. See Grayson O. Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th Cir. 2017) (“A
party waives an argument by failing to present it in its opening brief or by failing to develop
its argument––even if its brief takes a passing shot at the issue.”) (cleaned up); see also
Timpson ex rel. Timpson v. Anderson Cnty. Disabilities & Special Needs Bd., 31 F.4th 238,
256–57 (4th Cir. 2022) (finding appellants’ argument waived where they “presented no
basis for reversing the judgment below.”). And to the extent not waived, upon review of
the record, we affirm the district court and find no reversible error.
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We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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