ACLU of Indiana Says FSSA Violating Fourteenth Amendment
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Indianapolis -A developmentally disabled man whose sister provides his round-the-clock home care may be forced by the state’s social services agency to seek another provider.
Kenneth Koslowski of Merrillville, Ind., has a genetic disorder known as phenylketonuria (PKU), which renders him unable to read, write or drive. With an IQ of 35, he requires constant supervision. His sister, Jacqueline Ruark, who is an employee of a national home care agency, has been his primary caregiver for 12 years.
On March 1 the Indiana Family and Social Services Administration will implement new rules that “cap” the amount of habilitation services that can be provided by a family member under its Developmental Disabilities Medicaid Waiver Program, effectively rolling back the amount of care Ruark can provide her brother to 40 hours per week. The waiver program allows individuals with disabilities who might otherwise be institutionalized to live at home.
FSSA’s new cap will force the siblings to seek an additional caregiver. The American Civil Liberties Union of Indiana maintains that the rule violates Fourteenth Amendment rights to equal protection and due process, as well as the “free choice of provider” provision of the federal Medicaid Act, and is requesting a court order prohibiting the enforcement of the 40-hour cap.
“The U.S. Constitution prohibits the state from differentiating between two classes of people, such as patients who happen to be related to their providers and all other patients, without justification,” said ACLU of Indiana staff attorney Gavin M. Rose. “There is no basis for FSSA to place an untenable burden on this brother and sister, whose care-giving arrangements have worked for more than a decade.”
Gilbert Holmes, the ACLU of Indiana’s executive director, said FSSA’s new rule is contrary to the whole notion of family values. “Here is a family member taking care of a family member, and the state wants them to pay for someone else to do that job,” said Holmes. “It seems like a dehumanizing and callous approach to addressing the need of a segment of humanity that cannot fend for itself.”
The case, Jacqueline Ruark and Kenneth Kozlowski v. Secretary of the Indiana Family and Social Services Administration was filed in the United States District Court Southern District of Indiana under cause number 1:12-cv-0269-RLY-TAB.
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