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Vaughn v. Wernert

United States District Court, S.D. Indiana, Indianapolis Division

June 1, 2018

KAREN D. VAUGHN, Plaintiff,
v.
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.

          ORDER

          Hon. Jane Magnus-Stinson, Chief Judge

         This 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.]

         As 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' Motion.

         I.

         Background

         The 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.

         Ms. 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.]

         As the 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.]

         Under 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.

         Pursuant 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”).[1] 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.]

         Waiver 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 A&D Waiver.[2]

         In 2012, Ms. Vaughn received a tracheostomy[3] 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.]

         In 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.]

         Karen 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.]

         Staff 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.]

         As 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 modifications.

         On 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 “reasonable accommodations”:

• 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 hires;
• 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 nurses;
• “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.]

         Dr. 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, [4]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 83.]

         On July 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.]

         Ms. 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.]

         Ms. 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.

         II.

         Legal Standard

         A 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. 56(e).

         In 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).

         On 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 ...


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