Waskul settlement will greatly impact rural Michiganders with disabilities
This article was originally published in The Gander. Read it here.
How one Michigan mom fought for her disabled son to receive proper care—and won.
“Family is reliable, but everybody needs to have a decent wage to pay their bills,” said Cindy Waskul, who lives in Washtenaw County.
The 64-year-old oversees the care of her cognitively disabled son, Derek, who’s 40. For nearly a decade now, Cindy has been at the forefront of a lawsuit that would help her and other families like hers get help caring for their loved ones—particularly in Michigan’s rural regions.
For Michiganders with intellectual and developmental disabilities like Derek, who rely on Community Living Support (CLS) services, programs like Michigan’s Habilitation and Supports Waiver (HSW) allow them to live at home and participate in their communities. The HSW program offers a “self-determination” model of care, meaning program participants and their families don’t depend on care agencies and can hire their own staff for help, funded through Medicaid.
With the help of a care team, program participants can go out and do things that some of us may take for granted—going to a movie or eating out at a restaurant, for example.
“People with disabilities are people too. They deserve to enjoy their life and to be able to get out in the community and have people know them and see beyond their disabilities,” she said.
However, in 2015, when Washtenaw County Community Mental Health (WCCMH)—then known as the Washtenaw Community Health Organization—changed the way they budget funds for those who rely on CLS services. Caregivers had to start paying out of pocket for mileage for on the job transportation costs and they also had to start covering the costs of community events (going to restaurants, etc).
The low hourly wage and new out of pocket expenses caused caregivers to look elsewhere for jobs, like nursing homes or community mental health programs—which left many rural Michiganders in the dust.
Cindy said the cut in budgeting had an immediate impact on her son’s care.
“We lost staff that worked three days a week,” she said.
Derek ended up staying at home most days, which had a negative effect on his mental health.
“I’d have him go with me if I had to run errands—the grocery store, Costco, whatever—but he wasn’t happy. He wasn’t doing the fun things that he was doing when we had extra help,” Cindy said.
With less money available to hire care staff, Cindy and many Michiganders in the same situation Found themselves in a catch-22—work extra jobs to pay for staff, or stay home themselves and lose their jobs.
Frustrated and fed up, Cindy took a stand—one that would eventually lead to a multimillion-dollar settlement, impacting thousands of disabled Michiganders and their families.
The long, legal road
Three attorneys—Nick Gable, Kyle Williams, and Mark Cody—vividly remember being introduced to the Waskuls and their case in 2015.
“I was an attorney at Legal Services in South Central Michigan in Ann Arbor,” said Gable, who now serves as a senior attorney at Disability Rights Michigan (DRM). “One day Cindy Waskul walked in the door after she had received the April 2015 letter that reduced and changed the budget amount for the CLS services.”
Over in Lansing, the legal department at Protection and Advocacy Services—now Disability Rights Michigan—was also keeping an eye on the case.
“I was a staff attorney at the time, and I remember my boss, Mark Cody, slapping this giant complaint down on my desk,” said Kyle Williams, director of litigation with DRM. “He said, ‘This kid out in Ann Arbor got this case, you should take a look at it.’”
While filing a lawsuit would require systematic change for families like the Waskuls to receive justice, Williams said that it was a fight worth having.
“It was one of those issues that we were seeing in a lot of other places. If we could fix it for these families, we might be able to help others in Washtenaw County,” said Williams.
In 2019, four years after Cindy Waskul walked through Gable’s door, the US District Court for the Eastern District of Michigan dismissed the case on all counts.
“It was disappointing—I thought it was over then,” said Waskul. “I didn’t believe anything was going to come of it.”
All hope was not lost, however. In a major ruling in November 2020 that covered nearly every aspect of Medicaid funding for the disabled community, the US Court of Appeals for the Sixth Circuit reversed the dismissal.
“We were elated,” said Gable. “Not just because it meant that we could proceed with the case, but the impact of the decision from a legal perspective was really significant.”
He explained that the court was only the second circuit court in the country to rule that being isolated at home is a violation of the Americans with Disabilities Act (ADA).
“After the elation wore off, we realized we now have a really big case to litigate. And sure enough, it was a lot of work,” said Gable.
Brighter days ahead
On Dec. 1, 2023, after nearly a decade of fighting an uphill legal battle, the National Center for Law and Economic Justice (NCLEJ) and DRM announced that a settlement had been reached between the Michigan Department of Health and Human Services (MDHHS), the Waskuls, and other plaintiffs.
While it’s still subject to legislative appropriations and various other approvals, the settlement secured more than $110 million in additional state expenditures, according to a press release from DRM. If approved, the settlement will provide HSW recipients a rate of $31 per hour to pay caregivers and staff—a more than 50% increase over the current rate of $20.50 per hour.
“The huge uptick in funding means that Michiganders who need assistance to get out of the house and into the community will be able to hire and retain support staff by paying these hard-working caregivers something close to what they deserve,” said Edward Krugman, Senior Attorney at NCLEJ, in a press release.
Even after the rate increases expire in 2029, the settlement aims to increase transparency between CLS recipients and community mental health agencies.
The terms of the settlement will require CMH to break down and separately “cost out” each component cost of the CLS service in an itemized list. In other words, the hourly staff wage, community activities, cost of gas and other variables for each CLS recipient will be determined separately based on each individual’s needs during the person-centered planning process, then added together to build up an overall CLS budget.
Cindy said she is “over the moon” with excitement about the ruling. Not only will she be able to hire more staff to take care of Derek while she’s at work, the increased hourly rate will also allow her to offer more hours for potential staff.
“I would like to do things like pay time-and-a-half for holidays and weekends when we need more support,” she said. By offering a more liveable wage, she hopes she can bring in a quality team to take care of her son.
“We hope that with this settlement, families can have some form of assurance that their kids are cared for—because they’ll be able to get the people they need,” said Williams.
