Illinois Court Grants Nine Children Denied HCBS Class Action Status
February 26, 2014 09:26 AM
On February 13, in N.B., et al., v. Hamos, the United States District Court for the Northern District of Illinois (the Court) granted class action status to nine children (the Plaintiffs) with behavioral or emotional disorders who were denied home and community-based services (HCBS). This follows an October 2011 Amended Complaint (the Amended Complaint) by the Plaintiffs, as well as a December 2013 Memorandum Opinion and Order, whereby the judge refused the defendant Illinois Department of Human Services (DHS)’s motion to dismiss the case.
Severe Shortage of HCBS. The Amended Complaint references three reports showing a severe shortage of HCBS in Illinois (the State). The first was a report written by DHS in March 2010. This report stated that in Fiscal Year 2009, while DHS found that over 18,000 individuals aged 21 and younger had severe mental illnesses and emotional disturbances (MI/SED), only 220 received intensive community based services. Out of those 220, 145 received in-home services through the Individual Care Grant (ICG) Program, and 75 received services through Child Group Homes.
The second report cited by the Amended Complaint was the DHS Community Services Act Report from January 2009. According to that report, in Fiscal Year 2007, the ICG program only issued 81 grants out of a total 1,051 requests to receive intensive community based services.
The third report was issued by DHS in May 2011. It found that 496 children had an “Emergency Need” for “in-home or day supports immediately due to the person’s serious health or behavioral issues” and an additional 1,627 having a “Critical Need” for additional community supports.
Unnecessary institutionalization, poor care. Because of the lack of HCBS, the Amended Complaint asserted that those in the State with behavioral and emotional disorders are forced to “cycle through hospitals, emergency rooms, acute care facilities, and residential treatment centers without obtaining any long-term relief.” The Amended Complaint also alleges that “[t]he State of Illinois system of mental health care is so weak and uncoordinated that most children are released from facilities with little or ineffective follow-up community mental health care.”
The Plaintiffs allege the following:
Denial of medically necessary services. The Plaintiffs are entitled to receive Early and Periodic Screening, Diagnostic, and Treatment Services (EPSDT) under Illinois’ Healthy Kids Program. According to the February Order, the children are entitled to periodic health screenings, which “’must include’â€¦a Mental Health Assessment” whereby a Licensed Practitioner of the Healing Arts (LPHA) determines that a child “needs” a specific service to “‘stabilize the client’s functioning, or to restore or rehabilitate the client to a maximum level of life functioning,’ or that could not be omitted from a treatment plan ‘without adversely affecting the client’s level of functioning’ across ‘critical life areas.’”
Therefore, as the Amended Complaint alleges, the Plaintiffs are “entitled to receiveâ€¦medically necessary services in the community [through EPSDT].” Although mental health experts recommended that these children needed EPSDT and HCBS, Illinois never granted them such services.
Unnecessary institutionalization. According to the Amended Complaint, as the Plaintiffs were denied EPSDT and HCBS services, they faced “unnecessary institutionalization,” or imminent threat thereof. The Amended Complaint asserted that “the Defendant offers only a negligible amount of intensive home and community-based services to some children and not all children and have chosen instead to serve children in needlessly segregated settings.”
The Plaintiffs brought their suit against DHS on four grounds, including that the defendant violated: the EPSDT provisions of the Social Security Act, the Americans with Disabilities Act (ADA), and the Rehabilitation Act. The Plaintiffs seek relief that, according to the February Order, “would require [DHS] to implement appropriate screening and treatment alternatives to the acute care provided in general and psychiatric hospitals.” In addition, plaintiff N.B. seeks monetary damages for defendant’s alleged violation of the Rehabilitation Act.
To see the Amended Complaint, click here.
In the February Order, the Court certified the class to be defined as follows:
All Medicaid-eligible children under the age of 21 in the State of Illinois: (1) who have been diagnosed with a mental health or behavioral disorder; and (2) for whom a licensed practitioner of the healing arts has recommended intensive home- and community-based services to correct or ameliorate their disorders. [Feb 2013 Order, p. 30].
To see the February Order, click here.
Undermining rebalancing.The National Council on Medicaid Home Care – a NAHC affiliate - continues to oppose policies of states that have the effect of hindering rebalancing. By cutting needed benefits, the State creates an increased risk that severely developmentally disabled people like the Plaintiffs will be hospitalized or institutionalized.
The facts alleged in the Amended Complaint support the conclusion made in Senator Harkin’s Report that the victory of Olmstead, a case brought against the state of Georgia fifteen years ago, is incomplete. Home care providers should be aware that despite large national strides towards rebalancing, there is still unmet demand for home and community-based services (HCBS) caused by such short-sighted policies as alleged in recent litigation in Illinois (as described herein), New Mexico, and Florida, and demonstrated in New Hampshire and Georgia. As the Department of Justice suggested in the Florida case, states can adjust to this demand through cost-effective, “reasonable modifications,” such as providing more HCBS options/funding and pro-active HCBS screenings.
Compared to other states, Illinois uses long-term services and supports (LTSS) with mixed results. While AARP claims the State spent 27.9% of its Medicaid and state funded LTSS in HCBS, ranking it 30th among the states for that metric, AARP still ranked the State 23rd overall in LTSS utilization in its 2011 scorecard. While obtaining high marks in affordability and access LTSS metrics (12th overall), the State scored low marks in support for family caregivers (27th overall) and choice of setting & provider (33rd overall) LTSS metrics.
The Council encourages providers to continue to advocate for greater support of HCBS through their state associations, as well as through state and federal governments. Home care providers are encouraged to keep abreast of HCBS developments in their states, and nationally, and to contact the Council with any questions or concerns.