Judge: FSSA must take immediate, active role in families' care as attendant care lawsuit progresses

A federal judge ruled the Family and Social Services Administration is required to provide necessary services for two medically complex children who were affected by changes to the attendant care program. The injunction was modified because of concerns that it could endanger Indiana’s Medicaid program as the lawsuit moves forward.

The lawsuit filed in May said Indiana “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 parties in the case agreed the plaintiffs could continue with attendant care provided by a legally responsible individual until Sept. 1, while the case is being considered. The plaintiffs argue – without the extension of that relief – the two children would likely need to be institutionalized to meet their care needs, which they said violates federal law.

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

The judge said the families’ lawsuit is likely to succeed, but striking down the changes to the program for these two families could endanger Indiana’s Medicaid program.

FSSA said continuing to allow legally responsible individuals to provide attendant care would violate the state’s Medicaid waiver that provides home- and community-based services. This would put federal reimbursements, and potentially the entire program, at risk.
 

The court said FSSA “willingly choose” to violate the waiver for years by allowing legally responsible individuals to provide attendant care in the first place — and continued to do so after the lawsuit was filed by agreeing to allow the plaintiffs’ parents to provide attendant care until Sept. 1.

However, the judge said the potential of losing the Medicaid program would cause more harm to FSSA and the public.

Rather than the parents being able to continue to provide attendant care, the judge said FSSA will have to take an active role in making sure the plaintiffs have in-home, skilled nursing and the parents are reimbursed through the state’s new Structured Family Caregiving program.

The original complaint will continue to move through the court system.
 

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