United States District Court, S.D. Indiana, Indianapolis Division
KAREN D. VAUGHN, Plaintiff,
JOHN J. WERNERT, M.D., in his official capacity as Secretary of the Indiana Family and Social Services Administration, YONDA SNYDER, in her official capacity as Director of the Division of Aging of the Indiana Family and Social Services Administration, JOSEPH MOSER, in his official capacity as Director of the Office of the Medicaid Planning and Policy of the Indiana Family and Social Services Administration, Defendants.
Jane Magnus-Stinson, Chief Judge
case is before the Court because Karen Vaughn, a woman living
with quadriplegia, has been institutionalized in hospitals
and nursing homes for nearly two years, and she wants to go
home. She desires and is eligible to receive home-based care,
and she seeks to require Defendants, various entities of the
Indiana Family and Social Services Administration, to provide
that care. She raises claims under the Americans with
Disabilities Act, the Rehabilitation Act, and the Medicaid
Act, arguing that Defendants have failed to provide her with
the medical assistance for which she qualifies, thereby
institutionalizing her against her will. Ms. Vaughn seeks
injunctive relief, requiring Defendants to take whatever
measures are necessary and required by law to provide her
with community-based care in the setting of her home.
Presently pending before the Court are the parties'
cross-motions for summary judgment. [Filing No. 36;
Filing No. 47.]
described below, Defendants' positions depend on
precisely the type of circular argument that was disapproved
by the Seventh Circuit in Steimel v. Wernert, 823
F.3d 902 (7th Cir. 2016). Applying that decision, and for the
reasons that follow, the Court grants Ms. Vaughn's Motion
as to the issue of liability, and denies Defendants'
Court finds that the following facts have been established
through record evidence from the parties' submissions, as
well as concessions and admissions made at a May 22, 2018
hearing on the parties' pending summary-judgment motions.
The cross-motions initially indicated that there are no
genuine disputes of material fact in this case, but further
submissions eroded that position. However, the facts
underlying the Court's ruling are undisputed, and where
disputes exist, they do not affect the decision. The facts
below are undisputed, unless otherwise indicated.
Vaughn has lived with quadriplegia since 1976. [Filing
No. 36-2 at 27.] She requires assistance with most
activities of daily living, including bathing, preparing and
eating food, brushing her teeth, and passive range of motion
exercises. [Filing No. 36-2 at 11-12.] Between 1981
and 2016, Ms. Vaughn lived in her own apartment, where she
received services from home healthcare providers in order to
assist in those activities of daily living. [Filing No.
36-2 at 9.] She received those services under a
combination of programs funded by Indiana's Medicaid
program. [Filing No. 36-2 at 9-11.]
Seventh Circuit has noted, “[n]o one would accuse the
Medicaid program of simplicity.” Steimel v.
Wernert, 823 F.3d 902, 906 (7th Cir. 2016). There are a
variety of ways in which individuals may qualify for home
healthcare services under Indiana Medicaid, and the Court
details several that are at issue in this case. Under one
avenue, Indiana Medicaid provides for home healthcare
services on a “part-time and intermittent basis.”
[Filing No. 36-3 at 142.] The number of hours
approved for an individual to receive home healthcare is
determined by several factors, including that
individual's treatment plan and the complexity of the
individual's needs. [Filing No. 36-3 at 142-43.]
Home healthcare can generally be authorized for up to 12
hours per day for individuals who require 24-hour monitoring.
[Filing No. 37 at 4.] Up to 16 hours per day of
skilled care on an ongoing basis may be approved in special
situations via a “prior authorization” request.
[Filing No. 36-3 at 144.] Home healthcare services
under this “prior authorization program” do not
include transportation or general household chores.
[Filing No. 36-3 at 152.]
another route, an individual may be approved for home
healthcare on a more ongoing basis. The “default
assumption” under Medicaid is that certain types of
healthcare and daily living services will be delivered in
institutions. Steimel, 823 F.3d at 906. But in 1981,
Congress enacted Section 1915(c) of the Social Security Act,
42 U.S.C. § 1396n, which established the Home and
Community-Based Care Waiver Program
(“HCB”). Steimel, 823 F.3d at
906-07 (citing Andrew I. Batavia, A Right to Personal
Assistance Services: “Most Integrated Setting
Appropriate” Requirements and the Independent Living
Model of Long-Term Care, 27 Am. J.L. & Med. 17, 24
(2001)). Recognizing that “many people are better
served by and prefer community-based care, ” this
waiver program allows “states to diverge from the
traditional Medicaid structure by providing community-based
services to people who would, under the traditional Medicaid
structure, require institutionalization.”
Steimel, 823 F.3d at 907. Its purpose “was to
provide real choices and opportunities to control their lives
for individuals who wish to live in the community and allow
deviation from Medicaid's traditional institutional
bias.” Steimel, 823 F.3d at 907.
to the HCB waiver program, Indiana's Medicaid agencies
operate sub-program waivers “under which the state (and
the federal government) will pick up the tab” for
participating individuals' care. Steimel, 823
F.3d at 907. The Indiana Family and Social Services
Administration (“FSSA”) runs the waiver
program relevant to the instant case: the Aged and Disabled
Medicaid Waiver Program (the “A&D
Waiver”). Steimel, 823 F.3d at 906-07.
Under the A&D Waiver, attendant care services are
available to program participants. [Filing No. 36-4 at
1; Filing No. 36-4 at 48.] Those services
“involve hands-on assistance” including bathing;
oral hygiene; skin care; body mechanics; emptying urine and
colostomy bags; meal planning, preparation, and clean up;
waste disposal and household tasks; and assistance with
correspondence and bill paying. [Filing No. 36-4 at
48-49.] Attendant care services can be provided through
an agency or they can be consumer- or self-directed, where
the recipient selects and hires her own attendant care
provider. [Filing No. 37 at 5.]
participants may combine the A&D Waiver with
“traditional” Medicaid services, including prior
authorization services. Steimel, 823 F.3d at 907. As
the parties confirmed at the May 22, 2018 hearing in this
matter, prior to January 2016, Ms. Vaughn received services
through a combination of Medicaid programs, including the
A&D Waiver and prior authorization. Pursuant to prior
authorization, she received home healthcare from two nurses
per day who worked in ten-hour shifts. [Filing No. 36-2
at 20.] And she received attendant care services via the
2012, Ms. Vaughn received a tracheostomy and began using a
ventilator at night to assist her respiration. [Filing
No. 36-2 at 10.] Secretions can build up inside the
tracheostomy when an individual is unable to mobilize and
remove them on her own (by coughing, for example).
[Filing No. 55-2 at 31.] In those instances,
suctioning is necessary in order to prevent the individual
from choking. [Filing No. 36-2 at 17.] Ms.
Vaughn's tracheostomy sometimes requires suctioning, at
which point a tube is inserted into the opening, and a
machine with suctioning power removes any accumulated
secretions. [Filing No. 36-2 at 17.] While she lived
in her apartment, Ms. Vaughn's home healthcare providers
and friends would assist in suctioning her tracheostomy.
[Filing No. 36-2 at 16-17.] Generally, while living
in her apartment, Ms. Vaughn received regular and frequent
visits from friends. [Filing No. 36-2 at 82.] Those
visits including socializing in her apartment or balcony,
enjoying a glass of wine, or going out to public locations.
[Filing No. 36-2 at 81.]
January 2016, Ms. Vaughn was hospitalized at Methodist
Hospital with pneumonia. [Filing No. 36-2 at 19.]
Within one to two weeks, Ms. Vaughn's treating physician
indicated that her treatments had been successful, and that
Ms. Vaughn was ready to return home, provided she had the
proper support in place. [Filing No. 36-2 at 20.]
Stricker is a licensed clinical social worker, [Filing
No. 62-1 at 9], and she is currently a psychosocial
worker within the pulmonary unit at Methodist, [Filing
No. 62-1 at 12]. As part of her duties, she assists
patients in addressing barriers to discharge from the
hospital, including family, housing, and financial issues.
[Filing No. 62-1 at 12-13.] During Ms. Vaughn's
hospitalization, Ms. Stricker worked with a nurse case
manager in order to facilitate Ms. Vaughn's discharge
from the hospital. [Filing No. 62-1 at 25-26.]
Together, they attempted to locate an agency, or multiple
agencies in combination that would be willing to provide Ms.
Vaughn's home healthcare services, as she had received
prior to her hospitalization. [Filing No. 62-1 at
25-26.] Ms. Stricker and the case manager contacted
between 30 and 40 agencies, and they could find none that
would agree to provide Ms. Vaughn's care, either alone or
in combination. [Filing No. 62-1 at 27.]
of the FSSA Division of Aging also assisted Methodist staff
in attempting to locate home healthcare providers for Ms.
Vaughn. [Filing No. 36-1 at 2.] FSSA employees Yonda
Snyder, Debbie Pearson, and Tanya Downing were all involved
in various efforts to develop and implement a home healthcare
plan for Ms. Vaughn. [Filing No. 36-1 at 2.] Those
efforts included phone calls to potential home healthcare
agencies and meetings with Ms. Vaughn, Methodist staff and
physicians, and staff of CICOA (a local Agency on Aging).
[Filing No. 36-1 at 2-3.] None of these efforts
resulted in identifying an agency or agencies that agreed to
provide care for Ms. Vaughn. [Filing No. 55-2 at 43;
Filing No. 36-1.] Leslie Deitchman, the President
Administrator at Tendercare Home Health Services, Inc.
(“Tendercare”), attested that the
reimbursement rates paid by Indiana's Medicaid plan are
inadequate to pay the nurses and aides that Ms. Vaughn would
need. [Filing No. 47-4 at 1.] According to Ms.
Deitchman, Tendercare “would like to provide care to
Karen again, but [it] cannot do so at a loss.”
[Filing No. 47-4 at 1.]
discussed at the May 22 hearing, these efforts to locate a
home healthcare provider were expressly limited by two
factors: the reimbursement rate offered by Defendants to home
healthcare providers, and the “Medicaid Policy
Manual” requirements that certain tasks be performed by
skilled medical professionals. But, as Defendants discovered
in attempting to locate care providers for Ms. Vaughn, no
skilled medical provider will provide the care at the
reimbursement rates authorized by the State. Significantly,
however, both Ms. Vaughn and her health care providers
disagree with the Manual's requirement that a skilled
level of care is necessary for some of the tasks associated
with Ms. Vaughn's care. Ms. Vaughn has requested relief
from the Manual's skilled care requirements. Defendants
have offered no source of authority aside from the Medicaid
Policy Manual itself as to why it cannot accommodate Ms.
Vaughn's request for some skill-level service
April 12, 2016, Ms. Vaughn sent a letter to the FSSA stating
that because the FSSA had been unable to secure a home
healthcare provider, she was being held at Methodist against
her will. [Filing No. 47-1 at 6.] Citing the
Americans with Disabilities Act, she requested the following
• That her Medicaid Plan of Care remain in effect and
include a baseline of 22 hours per day of Prior Authorization
services, plus 2 hours per day of A&D Waiver services for
homemaker and personal attendant services;
• That she be permitted to directly hire and train
qualified staff for the level of service she believes most
appropriate to her needs, at competitive rates, to cover the
hours of service approved in her Medicaid Plan of Care;
• That the state of Indiana provide or contract for
payroll and related services to cover the staff she directly
• That the requirement to hire either nursing staff or
staff employed by a Medicaid provider agency be waived; and
• That her Plan of Care be amended to include the cost
of hiring a qualified, professional Long Term Care Manager of
Ms. Vaughn's choosing at a competitive private rate.
[Filing No. 47-1 at 6.] On July 18, 2016, Ms.
Stricker and Dr. Chad Trambaugh, one of Ms. Vaughn's
treating physicians at Methodist, sent FSSA a letter in
support of Ms. Vaughn's request for reasonable
accommodation. [Filing No. 55-2 at 43.] That letter
states, inter alia, that:
• Nursing agencies do not have enough nurses to staff
Ms. Vaughn, even with special attempts to recruit more
• “Any lay person could be taught how to safely
provide Ms. Vaughn's care”; and
• Ms. Vaughn “absolutely does not need to be
placed in a skilled nursing facility.”
[Filing No. 55-2 at 43.] Dr. Trambaugh and Ms.
Stricker supported Ms. Vaughn's request that she be
permitted to hire and train her own staff to provide 22 hours
of daily Medicaid prior authorization services, plus Medicaid
waiver services. [Filing No. 55-2 at 43.] Ms. Vaughn
attests that she received no formal response to her letter.
[Filing No. 36-2 at 45.]
Robert W. Weller is an internist and pulmonologist at
Methodist Hospital, an Assistant Professor of Clinical
Medicine at Indiana University School of Medicine, and has
cared for Ms. Vaughn since 2011. [Filing No. 47-2 at
1.] According to Dr. Weller, long-term placement in
either a skilled nursing facility or a hospital is not the
best medical option for Ms. Vaughn. [Filing No. 47-2 at
2.] In a nursing facility, Ms. Vaughn is at continuous
risk of nosocomial infections, and such infections compromise her
respiratory function and pose a risk to her life. [Filing
No. 47-2 at 2.] Dr. Trambaugh agrees with all of Dr.
Weller's assessments. [Filing No. 61-2 at 44.]
Increased risk of developing bedsores is also a potential
hazard of institutionalized care. Prior to being hospitalized
in 2016, Ms. Vaughn had not developed a decubitus ulcer (or
bedsore) in over twenty years. [Filing No. 36-2 at
82-83.] She attributes part of her success in avoiding
such ulcers to the fact that at home, she uses a water bed,
which avoids putting pressure on specific areas of her body.
[Filing No. 36-2 at 14.] While institutionalized,
she must be turned every two hours in order to prevent
bedsores, and she does not always receive that care.
[Filing No. 36-2 at 14; Filing No. 36-2 at
26, 2016, Division of Aging staff met with Ms. Vaughn,
hospital staff and doctors, Ms. Vaughn's advocates, and
her legal counsel to discuss a care plan that included
finding a home healthcare provider for Ms. Vaughn.
[Filing No. 36-1 at 2.] Division of Aging staff
continued to attempt to locate home healthcare agencies that
would, in combination, be willing and able to meet Ms.
Vaughn's needs. [Filing No. 36-1 at 2-3.] Within
the bounds of the current Medicaid programs, as administered
by FSSA, no healthcare providers were found. [Filing No.
36-2 at 60.] In mid-November 2016, Ms. Vaughn was
discharged to North Capitol nursing home. [Filing No.
36-2 at 60.]
Vaughn resided at North Capitol through February 2017, when
she was hospitalized at Methodist after developing a
decubitus ulcer that required surgery. [Filing No. 36-2
at 23-24.] After that surgery, Ms. Vaughn was again
medically cleared for discharge home. [Filing No. 36-2 at
25.] Ms. Vaughn's desire to return home remained
unchanged, and according to Ms. Snyder, Division of Aging
staff called fifty providers in an attempt to locate one or
several that could provide Ms. Vaughn's home healthcare
within the existing Medicaid regime. [Filing No. 36-1 at
3.] Again, none were found. [Filing No. 36-1 at
3-4.] In December 2017, Ms. Vaughn was discharged to
Ambassador Healthcare nursing home in Centerville, Indiana,
where she still resides today. [Filing No. 36-2 at
23; Filing No. 47-1 at 1.] Centerville is over
60 miles away from Ms. Vaughn's home and friends in
Indianapolis. At all times relevant to this lawsuit, Ms.
Vaughn has wished, and continues to wish, to reside at home.
[Filing No. 47-1 at 1.]
Vaughn filed a Complaint in this Court on November 30, 2016,
seeking declaratory and injunctive relief. [Filing No.
1.] Ms. Vaughn's Complaint raises three claims, for
violations of the Americans with Disabilities Act, the
Rehabilitation Act, and the Medicaid Act. [Filing No.
1.] Presently pending before the Court are the
parties' cross-motions for summary judgment, which are
now fully briefed. [Filing No. 36; Filing No.
47.] As noted, the Court held a hearing regarding those
pending motions on May 22, 2018. [Filing No. 63;
Filing No. 64; Filing No. 65.] Those
motions are now ripe for the Court's review.
motion for summary judgment asks the Court to find that a
trial is unnecessary because there is no genuine dispute as
to any material fact and, instead, the movant is entitled to
judgment as a matter of law. SeeFed. R. Civ. P.
56(a). As the current version of Rule 56 makes clear, whether
a party asserts that a fact is undisputed or genuinely
disputed, the party must support the asserted fact by citing
to particular parts of the record, including depositions,
documents, or affidavits. Fed.R.Civ.P. 56(c)(1)(A). A party
can also support a fact by showing that the materials cited
do not establish the absence or presence of a genuine dispute
or that the adverse party cannot produce admissible evidence
to support the fact. Fed.R.Civ.P. 56(c)(1)(B). Affidavits or
declarations must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the
affiant is competent to testify on matters stated.
Fed.R.Civ.P. 56(c)(4). Failure to properly support a fact in
opposition to a movant's factual assertion can result in
the movant's fact being considered undisputed, and
potentially in the grant of summary judgment. Fed.R.Civ.P.
deciding a motion for summary judgment, the Court need only
consider disputed facts that are material to the decision. A
disputed fact is material if it might affect the outcome of
the suit under the governing law. Williams v.
Brooks, 809 F.3d 936, 941-42 (7th Cir. 2016). In other
words, while there may be facts that are in dispute, summary
judgment is appropriate if those facts are not
outcome-determinative. Montgomery v. American Airlines
Inc., 626 F.3d 382, 389 (7th Cir. 2010). Fact disputes
that are irrelevant to the legal question will not be
considered. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
summary judgment, a party must show the Court what evidence
it has that would convince a trier of fact to accept its
version of the events. Gekas v. Vasilades, 814 F.3d
890, 896 (7th Cir. 2016). The moving party is entitled to
summary judgment if no reasonable fact-finder could return a
verdict for the non-moving party. Nelson v. Miller,
570 F.3d 868, 875 (7th Cir. 2009). The Court views the record
in the light most favorable to the non-moving party and draws
all reasonable inferences in that party's favor.
Skiba v. Illinois Cent. R.R. Co., 884 F.3d 708, 717
(7th Cir. 2018). It cannot weigh evidence or make credibility
determinations on summary judgment because those tasks are
left to the fact-finder. Miller v. Gonzalez, 761
F.3d 822, 827 (7th Cir. 2014). The Court need only consider
the cited materials, Fed.R.Civ.P. 56(c)(3), and the Seventh
Circuit Court of Appeals has repeatedly assured the district
courts that they are not required to “scour every inch
of the record” for evidence that is potentially
relevant to the ...