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Hanks v. Illinois Department of Healthcare and Family Services

Court of Appeals of Illinois, First District, Third Division

July 22, 2015

THEORTHE HANKS, SR., on behalf of Theorthe Hanks, Jr., Plaintiff-Appellee,

Page 417

Appeal from the Circuit Court of Cook County. No. 12 CH 28794. The Honorable Rita Novak, Judge Presiding.

FOR PLAINTIFF-APPELLEE: Charles R. Petrof, OF COUNSEL, Legal Assistance Foundation, Chicago, IL.

FOR DEFENDANTS-APPELLANTS: Lisa Madigan, Attorney General, Carolyn Shapiro, Solicitor General, Linda Boachie-Ansah, OF COUNSEL.

Lavin and Mason, Justices concurred in the judgment and opinion.


Page 418


[¶1] Defendants, the Illinois Department of Healthcare and Family Services (the Department) and its director, appeal an order of the circuit court reversing the Department's administrative decision to reduce the number personal assistant service plan hours to which Theorthe Hanks, Jr., (Jason) was entitled as a recipient of benefits pursuant to the Department's Home Services Program (HSP or Program). On appeal, defendants argue that the Department's decision to allocate 178.75 personal service hours per month to Jason was not clearly erroneous; rather it was based on the Department's careful consideration of Jason's needs as well as its own governing regulations. Accordingly, defendants argue that the Department's final administrative decision should be reinstated. For the reasons set forth herein, we reverse the judgment of the circuit court.


[¶3] The Department's Home Services Program " is a Medicaid Waiver Program (42 CFR 440.180) designed to prevent the unnecessary institutionalization of individuals who may instead be satisfactorily maintained at home at lesser cost to the State." 89 Ill. Adm. Code § 676.10(a) (1999). To that end, the Program provides funding for individuals diagnosed with various disabilities and impairments to obtain the care and assistance necessary to allow them to remain in their personal residences. 89 Ill. Adm. Code § 676.30(j) (2014). A variety of services are available under the Program including personal assistant services, adult day care services, homemaker services, maintenance home health services, home delivered meals, day habilitation services, and behavioral services. 89 Ill. Adm. § 676.40 (2014). Ultimately, the " service level, combination of services, and amount of services for which a customer is eligible is dependent upon the needs of the customer." 89 Ill. Adm. § 676.40 (2014). To determine an individual's eligibility and need for any of the aforementioned services, the Department utilizes a Determination of Need (DON) assessment tool. 89 Ill. Adm. § 679.10 (2015). This tool assesses an individual's

Page 419

impairment with respect to 15 specific Activities of Daily Living (ADLs): " eating, bathing, grooming, dressing, transferring, incontinence care, preparing meals, being alone, telephoning, managing money, routine health care tasks (or those health care tasks not requiring specialized training), specialized health care tasks (or those requiring assistance from trained medical practitioners), necessary travel outside the home, laundry, and housework." 89 Ill. Adm. § 679.30(b) (2007). Once an individual's impairments are ascertained, a service plan will be created that " include[s] the type of service(s) to be provided to the customer, the specific tasks involved, the frequency with which the specific tasks are to be provided, the number of hours each task is to be provided per month, [and] the rate of payment for the service(s)." 89 Ill. Adm. Code § 684.50 (1999). Ultimately, the services that will be provided to those who qualify for the Program's assistance are those that are " necessary to meet an unmet care need of the individual." 89 Ill. Adm. Code § 684.10(a) (2014). In addition to being necessary to meet an individual's needs, those services must also be " safe and adequate," " cost effective" and " the most economical in terms of the customer's needs." 89 Ill. Adm. Code § 684.10(b)(1)-(3) (2014). Once an individual begins receiving Program services, he " must have eligibility [regularly] redetermined and must continue to meet all eligibility criteria" to continue to receive assistance from the Program. 89 Ill. Adm. Code § 682.400 (1999).

[¶4] Jason was born on May 4, 1979, and was diagnosed with mental retardation when he was 2-years-old. He is unable to speak and also suffers from an enlarged heart, high blood pressure, high cholesterol, and diabetes. In addition, Jason has poor eyesight, which is a side effect of his diabetes. Jason first began receiving assistance from the Program in 2003. Since then, Jason has continued to have his needs reassessed and has continued to receive personal assistance hours. He resides in an apartment with his mother, who has been designated his personal assistant under the Program. As Jason's personal assistant, his mother is the individual primarily responsible for ensuring that Jason's needs with respect to the 15 aforementioned ADLs are met. Jason's father, sister, and brother reside in a different nearby residence. Jason's brother is also a recipient of HSP services and his mother also serves as his brother's personal assistant.

[¶5] Jason's most recent assessment was performed by Julie Malone, a counselor from the Department's Division of Rehabilitative Services (DRS) on April 22, 2011.[1] During the reassessment, Malone interviewed Jason's parents, and based upon the information that she obtained, Malone completed a DON assessment for Jason and reduced his personal service hours from 248 per month (approximately 8 hours per day) to 156.75 hours per month (approximately 5 hours per day). The categories in which personal service hours were reduced included: bathing, grooming, laundry, time outside of the home, routine health care, and being alone. Specifically, bathing was reduced from 31 hours to 14.25 hours, grooming was reduced from 22.5 hours to 10 hours, time outside of the home was reduced from 20 hours to 15 hours, routine health care was reduced from 15.5 hours to 7.75 hours, and being alone was reduced from 23.25 hours to 0 hours.[2] The reduction in Jason's personal

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service hours in those areas was based upon Malone's conclusion that " the previous service plan exceeded the number of hours necessary to meet an unmet care of need." Malone, however, did add personal service hours in the category of " telephoning." Jason's personal service hours in the other categories remained unchanged.[3] On June 3, 2011, after being notified of the reduction in Jason's personal service hours, Hanks, Sr., requested an administrative hearing. That hearing was conducted on April 10, 2012.

[¶6] Jason's father and Malone both participated in the hearing. Jason's mother, who acted as his personal assistant and performed the majority of the tasks necessary to care for her son, elected not to participate in the hearing. At the hearing, Malone testified that she did not look at previous home service plans completed for Jason because prior plans have no bearing on the amount of services allocated to an individual following a new assessment. She further testified that the conclusions that she reached during the assessment were primarily based on the information that Jason's mother, who was very familiar with her son's limitations and his daily needs, provided to her during the four hour reassessment. For example, Malone explained that she reduced the number of hours allocated to the category of bathing based on Jason's mother's representation that she bathed her son every other day rather than every day, which is what had been reported in 2009 assessment. In contrast, Malone testified that Jason's father was hesitant in his responses and did not seem as knowledgeable of the time it took to fulfill Jason's needs. For example, although he testified that his son was shaved every day, Malone noticed that Jason had a full beard at the time of the reassessment. Jason's father, in turn, testified at the hearing that Malone's account of his wife's time estimates were inaccurate and provided his own estimates even though he conceded he was not the individual who performed those tasks. However, he reported that he was familiar with his son's needs and the time required to meet those needs because he spent four to six hours with his son daily.

[¶7] On June 29, 2012, following the hearing, the Department issued a revised decision (Post-Hearing Decision) in which it denied Jason's request to return his monthly personal service hours to 248, but increased his personal service hours to 167 per month. In doing so, the Department found that the overall reduction in personal service hours in the categories pertaining to bathing and grooming was correct, but that the amounts of the reductions were incorrect because they " did not adequately provide for the Customer's needs." Accordingly, based on the testimony that the Department considered, personal service hours for bathing were increased to 23.25 hours per ...

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