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N.B. By and Through His Mother, Angela Buchanan; R.F. By and Through v. Julie Hamos

May 30, 2012

N.B. BY AND THROUGH HIS MOTHER, ANGELA BUCHANAN; R.F. BY AND THROUGH HIS MOTHER, DANIELLE FRAVEL; J.J. BY AND THROUGH HIS MOTHER, PHOEBE JOHNSON; M.WA. BY AND THROUGH HIS MOTHER, DEBORAH WALTERS; AND M.WH. BY AND THROUGH HIS MOTHER, PATRICIA WHEATFILL, INDIVIDUALLY AND ON BEHALF OF A CLASS, PLAINTIFFS,
v.
JULIE HAMOS, IN HER OFFICIAL CAPACITY AS DIRECTOR OF THE ILLINOIS DEPARTMENT OF HEALTHCARE AND FAMILY SERVICES, DEFENDANT.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

Plaintiffs, five minors with behavioral or emotional disorders, have brought this suit, by and through their mothers, against the Director of the Illinois Department of Healthcare and Family Services (the "Department" or "HFS"). Plaintiffs seek declaratory and injunctive relief on their own behalf and on behalf of a class for alleged violations of the Early and Periodic Screening, Diagnostic, and Treatment ("EPSDT") provisions of the Medicaid Act, 42 U.S.C. §§ 1396a(a)(43), 1396d(r); 42 U.S.C. § 1983; Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132; and the Rehabilitation Act § 504, 29 U.S.C. § 794. Specifically, Plaintiffs allege that the Department fails to provide medically necessary behavioral and mental health services in the least restrictive setting.

Plaintiffs now move for class certification. Also before the court is a motion to intervene filed by Robert F. Harris, the Cook County Public Guardian. The Public Guardian seeks leave to intervene on behalf of three of his wards, who would represent a subclass of children who are in temporary custody or guardianship of the Illinois Department of Children and Family Services ("DCFS"). For the reasons explained here, Plaintiffs' motion for class certification and the Proposed Intervenors' motion to intervene are denied without prejudice.

BACKGROUND

I. Legal Framework

A. Medicaid and EPSDT

Medicaid, or Medical Assistance, is a joint federal- and state-funded program that provides medical assistance to needy aged or disabled persons and to families with dependent children whose income and resources are insufficient to meet the cost of care. See 42 U.S.C. § 1396. All states that participate in the Medicaid program must operate the program in conformity with federal statutory and regulatory requirements. See id. § 1396a. Each participating state must designate a single state agency to administer the state's Medicaid plan. Id. § 1396a(a)5. In Illinois, HFS is the single state agency responsible for the administration of the Medicaid program within the state.

Federal law requires states to fully implement the EPSDT program, which provides comprehensive and preventive healthcare services for children under age twenty-one who are enrolled in Medicaid. See id. § 1396d(r). Screening services required under EPSDT include "a comprehensive health and developmental history (including assessment of both physical and mental health development)." Id. § 1396d(r)(1)(B)(i). A state Medicaid plan must provide for "such screening services in all cases where they are requested." Id. § 1396a(a)(43)(B). The state plan must also provide for "corrective treatment the need for which is disclosed by such child health screening services." Id. § 1396a(a)(43)(C). Further, a state must provide "necessary health care, diagnostic services, treatment, and other measures . . . to correct or ameliorate defects and physical and mental illness and conditions discovered by the screening services, whether or not such services are covered under the State plan." Id. § 1396d(r)(5).

The State of Illinois, as a participant in the Medicaid program, is required to provide EPSDT services. Plaintiffs claim that Defendant has failed to provide Plaintiffs and members of the proposed class with intensive home- and community-based services that are "medically necessary to treat or ameliorate" their behavioral and emotional disorders. (Am. Compl. ¶ 130.) Neither the Medicaid Act nor the statutory provisions establishing the EPSDT provide for a private right of action, but the Seventh Circuit has recognized that Medicaid entitlements may be enforced via § 1983. See Bertrand ex rel. Bertrand v. Maram, 495 F.3d 452, 456-57 (7th Cir. 2007).

B. The "Integration Mandate"

Plaintiffs allege that the Department has not only failed to provide medically necessary home- or community-based services, but also that, in providing EPSDT-required services in institutional settings, the Department violates the the "integration mandate" of the ADA and the Rehabilitation Act. Title II of the ADA prohibits a public entity from excluding a qualified disabled person from participation in, or denying a qualified disabled person the benefits of, public services.

42 U.S.C. § 12132. Pursuant to regulations promulgated by the Attorney General under Title II, "[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35.130(d). A public entity is relieved of its obligation under this "integration mandate," however, if it can demonstrate "that making the modifications would fundamentally alter the nature of the service, program, or activity." Id. § 35.130(b)(7); see also Radaszewski ex rel. Radaszewski v. Maram, 383 F.3d 599, 607 (7th Cir. 2004). The Rehabilitation Act and its implementing regulations impose the same integration mandate on programs receiving federal financial assistance. See 29 U.S.C. § 794(a); 28 C.F.R. §§ 41.51(d), 41.53, 42.511(c); 45 C.F.R. § 84.12(c); Radaszewski, 383 F.3d at 607.In the seminal decision interpreting these provisions, the Supreme Court held that a state violates the integration mandate when the state unnecessarily segregates mentally disabled individuals-who could benefit from community-based care and who desire to receive such care-by placing them in institutions to obtain the services they need. See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 597-602 (1999).

II. Care for Children with Behavioral and Emotional Disorders in Illinois

According to Plaintiffs, reports produced by the Illinois Department of Human Services ("DHS") and its various divisions-tasked by the State to provide streamlined access to integrated services to those with serious mental illness or developmental disabilities-demonstrate that Defendant has failed to provide EPSDT services to children with behavioral and emotional disorders in the most integrated setting. Under state law, DHS must submit a bi-annual report "regarding the extent to which children (i) with developmental disabilities, mental illness, severe emotional disorders, or more than one of these disabilities, and (ii) who are currently being provided services in an institution, could otherwise be served in less-restrictive community or home-based setting for the same or for a lower cost." 20 ILCS 1305/10-55. Pursuant to this directive, DHS released a report in March 2010 detailing the separate systems and funding streams in place to service those children with developmental disabilities and those with mental illness and severe emotional disturbance ("MI/SED").

The agency reported that out of 44,959 children (up to age 21) served by DHS's Division of Mental Health during FY2009, some 18,134 of them met the criteria for MI/SED. (DHS, Institutional Services for Children with Developmental Disabilities, Severe Mental Illness (2010), Ex. A to Pls.' Mot. for Class Certification.) The State provides funding for these children through what is called an "Individual Care Grant" ("ICG"), which families may choose either for alternative in-home/community services or placement in residential treatment facilities. (Id.) Through the ICG program, the Division of Mental Health provided 145 children living in their own homes with intensive community-based care in 2009, and provided an additional 75 receiving ICG funding with care at residential treatment facilities; 275 received ICG funding for institutionalized care. (Id.)*fn1 The report concluded that the average annual cost of ICG funding for institutionalized care ($105,938), was greater than the projected average annual cost for intensive in-home support ($20,356) or child group homes ($103,295). (Id.) The report does not, however, identity the number of children with MI/SED who could benefit from home- or community-based care, but who are currently institutionalized or in danger of institutionalization. Indeed, nothing in the record suggests that Illinois has a system in place for identifying such children.
During the same fiscal year, DHS's Division of Developmental Disabilities served approximately 8121 children and adolescents through the age of 17 with developmental disabilities, with the vast majority (7621) receiving services in-home or in small group homes; only 500 of these children received services in large institutional settings. (Id.) As part of the funding made available for community-based services, the State established two Medicaid Home and Community-Based Services Waivers for children and young adults with developmental disabilities ages 3 through 21. (Id.)*fn2 In 2009, the Children's Support Waiver, which provides state funding for an array of in-home services, was authorized to serve up to 1100 children and young adults. (Id.) The Children's Residential Waiver, which provides funding for placement and treatment in child group homes, was authorized to serve up to 201 children. (Id.)

In contrast to the situation for children with MI/SED, the State appears to have a system in place for identifying children with developmental disabilities in need of home- and community-based services: the Prioritization of Urgency of Need for Services ("PUNS") database. PUNS is a statewide database that identifies persons with developmental disabilities who have requested services from the Division of Developmental Disabilities. See PUNS Program Brochure (English Version), http://www.dhs.state.il.us/page.aspx?item=32444 (last visited May 29, 2012). The State uses the PUNS database to select eligible individuals to receive Children's Support or Residential waivers that become available based on need and length of time ...


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