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ACLU working on another appeal in resident's case

Friday, March 6, 2009

(Photo)
Edna Chadwell
American Civil Liberties Union of Indiana (ACLU) attorney Gavin Rose has already begun composing an appellate brief regarding a case involving a Clay County woman suffering from cerebral palsy.

Rose told The Brazil Times the state has appealed a recent motion by Clay County Superior Court Judge J. Blaine Akers.

Earlier this year, the state of Indiana filed a motion to dissolve preliminary injunction in a case for Clay County resident Edna Chadwell and others.

The case stems from a lawsuit the ACLU filed on Chadwell's behalf against the Indiana Family and Social Services Administration (FSSA) last year. The lawsuit specifically targeted the agencies' Aged and Disabled Waiver Program.

"The state has decided to appeal the trial court's refusal to dissolve the preliminary injunction and has hired a private law firm to do so on its behalf," Rose said. "They had indicated they might appeal the decision so it certainly wasn't a shock, but I did not receive confirmation that they had decided to do so until I received the actual Notice of Appeal in the mail."

Rose said the appeal process could be lengthy.

He said after the appeal is filed, the trial court types out any transcripts that were requested. According to Rose, the state requested a transcript of the preliminary injunction hearing.

"When this is done, the clock on the state's brief begins," Rose said.

He added the state would then have 30 days to file its appellate brief in the Indiana Court of Appeals, although extensions of time could be requested.

"After that, we have 30 days to file our brief, and they have 15 days to file a shorter reply brief responding to our arguments," Rose said.

He said after briefings are complete, the court of appeals will then decide whether to set the case up for oral argument.

"We will request that they do so, but it will be entirely up to them," Rose said.

He added the state court of appeals conduct oral arguments in approximately 5 percent of cases. Oral arguments in this case would then be made by attorneys only. No testimony would take place, Rose said.

"After that, it's anyone's guess as to how long they take to issue a decision, although I believe they average between four and six months after briefing is completed to issue a decision," Rose said.

Rose said some cases have been pending for a year or more before a decision is issued.

He added despite the state's recent filing, the injunction remains in effect pending the appeal.

"I am confident that the appellate court will recognize that these caps have the potential to deprive the most needy Hoosiers of life-saving and life-sustaining care, and will affirm the trial court's decision," Rose said.

The Aged and Disabled Waiver Program, according to Rose, permits Medicaid recipients who "otherwise required institutionalization for their conditions -- whether that be in a nursing home, a hospital or another facility -- to receive services in their homes or a community-based setting."

According to Rose, the waiver program has to be renewed by the FSSA every five years and the renewal then goes through an approval process by the United States Department of Health and Human Services.

However, Rose said when the program was renewed this year, the FSSA included a limitation on the number of "attendant care" hours that enrollees may receive.

In August 2008, Chadwell informed The Brazil Times of her situation. She is confined to a wheelchair and is physically dependant on others for assistance with basic needs.



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