FSSA argues plaintiffs’ parents can’t continue to provide attendant care in Medicaid legal challenge

The state made its first public arguments in a legal challenge to recent changes to Indiana’s attendant care program. The program provides services for people considered medically complex. Attorneys for the Indiana Family and Social Services Administration said parents aren’t allowed to provide this type of care under the state’s Medicaid program.

The lawsuit filed in May said the state “has failed and continues to fail in its duty” to provide necessary care to medically complex children. The state took away the option for parents or “legally responsible individuals” to provide attendant care following last year’s Medicaid forecasting error.

The plaintiffs include two families who are allowed to continue with attendant care provided by a legally responsible individual until September 1, while the case is being considered.

The attorneys for the plaintiffs say that needs to be extended to avoid the potential of the children being institutionalized to get the care they need. The state disagreed with the plaintiffs assessment that the children would require institutionalization without this program.

Gavin Rose, an attorney with the ACLU of Indiana, pointed out that the state has previously approved services for the plaintiffs that show a need for near-constant care. He said the complex care needed by each plaintiff requires a caregiver with skill and vigilance, and parents are uniquely qualified to serve those medical needs. The attendant care program pays attendants an hourly rate to provide “unskilled” care.

Previously, parents would provide that unskilled labor, while being able to step up should something more serious occur, such as a seizure. Rose said legally responsible individuals would provide this care in place of “inaccessible” nursing services due to a shortage of skilled care providers in the state.

Despite the unique ability to provide care, Rose said the plaintiffs are not seeking reimbursement for skilled care from legally responsible individuals.

Legally responsible individuals have been providing this service for years, but the state said it should have never been approved because it isn’t a part of Indiana’s Medicaid program.

It argued the families should use other resources and Medicaid services to transition away from the program. This included “natural supports” such as services available at schools. It also said that workforce shortage or lack of a school nurse skilled enough to provide care was not a Medicaid issue.

The state said the two legally responsible individuals should not be allowed to continue providing attendant care to their children because other families have been able to adapt to the state’s transition.
 

READ MORE: Families of medically complex children 'lost trust' in FSSA during attendant care transition

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In July, families with attendant care provided by a legally responsible individual were either transitioned to someone else being the paid caregiver or to the Structured Family Caregiving program.

The state said more than 68 percent of Medicaid recipients successfully transitioned to the Structured Family Caregiving program, which pays family caregivers a daily rate to provide unskilled care. The plaintiffs said the rate is not enough to support the complex care each child needs.

Attorneys for FSSA said the agency provided support and “months of runway” for families to adjust their service plans. However, some families and lawmakers said Medicaid recipients were not given enough time to adjust to the changes.

The state also said the plaintiffs don’t have the legal ability to argue over reimbursement rates as private individuals. It also said that since this isn’t allowed under Indiana’s Medicaid program, they would be required to create a “new” service.

Rose pushed back, and said they don’t want to change the services provided under attendant care, just who is allowed to provide it. He also said the state is trying to use its own policy to justify the sudden change, which isn’t a fair argument.

The state said it could not reasonably accommodate allowing people to continue utilizing attendant care provided by a legally responsible individual, even if just for the two families involved in the lawsuit.

The judge is expected to decide by September 1 whether or not to allow the plaintiffs to continue receiving their current services while the case is being considered.

Abigail is our health reporter. Contact them at aruhman@wboi.org.