United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
M. DOW, JR. UNITED STATES DISTRICT JUDGE.
the Court is Plaintiffs' amended motion for class
certification . For the reasons set forth below, the
Court grants Plaintiffs' amended motion for class
certification  in part. This case is set for further
status hearing on January 12, 2018 at 10:30 a.m.
Plaintiffs in this case are disabled persons who receive
funding for in-home shift nursing services from the Illinois
Department of Healthcare and Family Services (HFS) through
its non-waiver Medicaid program commonly known as the Nursing
and Personal Care Services (NPCS) program. The NPCS program
restricts enrollment in the program to persons under the age
of 21. Plaintiffs seek to represent a class of approximately
411 medically fragile disabled individuals who have been
found eligible by Defendant for in-home shift nursing
services through the NPCS program, but who are not entitled
to receive such services through the NPCS program after they
reach the age of 21. Instead, Plaintiffs and the putative class
may seek services through the Home Services Program (HSP).
NPCS program is related to the Medicaid Act's
“early periodic screening, diagnostic, and treatment
services” (EPSDT) provision for individuals under the
age of 21 (to simplify, the Court will refer to individuals
under the age of 21 as “children”). See 42 U.S.C.
§ 1396a(a)(43). The Medicaid Act's EPSDT provision
mandates that states provide payment for any medically
necessary service for children. When an EPSDT screening
detects a problem, Medicaid-eligible children receive
coverage for all services necessary to “correct or
ameliorate” the problem, “whether or not such
services are covered under the State plan.” 42 U.S.C.
§ 1396d(r)(5). This includes in-home shift nursing
services. See 42 U.S.C. § 1396a(a)(43); 1396d(r).
Skilled nursing is an optional service that Illinois'
Medicaid Plan does not provide for adults but is required to
be provided to children as an EPSDT service. See 89 Ill.
Admin. Code §§ 140.3(c), 140.485.
“a State and federally funded program designed to allow
Illinois residents, who are at risk of unnecessary or
premature institutionalization, to receive necessary care and
services in their homes, as opposed to being placed in an
institution.” 89 Ill. Admin. Code § 676.30(j). The
amount of funding that individuals can receive through this
program is based on the cost of a nursing home level of care
for adults with physical disabilities. 89 Ill. Admin. Code
§ 679.50. An applicant to HSP is assigned a
“Determination of Need” or “DON”
score based on his impairment and need for care. 89 Ill.
Admin. Code § 676.30(e). The DON assessment “is
made to determine whether or not the individual is at
imminent risk of institutionalization, and therefore eligible
for placement in a hospital/nursing facility and/or services
through HSP.” 89 Ill. Admin. Code § 679.10(a). HSP
provides services such as personal assistants, adult day
care, homemaker services, skilled professional nursing,
certified nursing assistants, in-home therapy, home-delivered
meals, emergency home response, special medical equipment and
supplies, environmental modifications, and respite services.
Ill. Admin. Code tit. 89, § 676.40.
the NPCS program, the amount of funding that an individual
can receive for services through HSP is capped by statute.
See 89 Ill. Adm. Code § 679.50. HSP differs in a number
of other respects from the NPCS program. For example, while
individuals in the NPCS program receive services mandated by
the Medicaid Act's EPSDT provision, individuals in HSP
are not entitled to receive the same services. Another
difference between the NPCS program and HSP is how each
program determines the amount of funding individuals in each
program are entitled to receive for services. For individuals
in HSP, state law provides that a “Determination of
Need” or “DON” evaluation must be conducted
to determine their need for a nursing facility level of care;
the amount of funding individuals receive for services
through HSP is determined on that basis. For individuals in
the NPCS program, on the other hand, it only is necessary to
obtain prior approval in order to receive funding for
services through the NPCS program-meaning that a consulting
physician determines the services are medically necessary and
appropriate to meet the participant's needs. 89 Ill.
Admin. Code § 140.473(a), (e).
bring claims under the Americans with Disabilities Act (ADA),
the Rehabilitation Act (RA), and 42 U.S.C. Section 1983,
raising two theories. First, Plaintiffs argue that they are
at risk of being institutionalized or suffering serious harm
as a result of Defendant's policy of restricting
enrollment in the NPCS program to individuals under the age
of 21. Although Plaintiffs may be entitled to receive funding
for in-home shift nursing services through HSP after they
reach the age of 21, the services available through HSP are
more limited and are subject to a cap on funding that does
not apply to the NPCS program. Second, Plaintiffs argue that
Defendant is discriminating between disabled persons aging
out of the NPCS program and disabled persons aging out of the
State of Illinois' Medically Fragile, Technology
Dependent (MFTD) program, as disabled persons in the MFTD
program continue to receive in-home shift nursing services
based on medical necessity after they reach the age of 21
while disabled persons in the NPCS program do not.
discussed above, Plaintiffs seek to represent a class of
approximately 411 medically fragile disabled individuals who
have all been found eligible by Defendant for in-home shift
nursing services through the NPCS program, but who are not
entitled to receive such services through the NPCS program
after they reach the age of 21. Excluded from Plaintiffs'
proposed class are “persons who are enrolled in the
State of Illinois' Medically Fragile Technology Dependent
(MFTD)” program. [29, at 1.] The MFTD program exists to
serve severely-ill individuals who require a hospital or
skilled nursing facility level of care if they do not receive
in-home medical care. 89 Ill. Admin. Code § 120.530(b).
By contrast, those enrolled in the NPCS program need only
show that they have “an identifiable need for in-home
shift nursing services.” [54, at 2.] Accordingly, those
enrolled in the MFTD program receive more benefits than those
enrolled in the NPCS program. [54-1.]
the NPCS program, the MFTD program is related to the Medicaid
Act's EPSDT provision for children. See 42 U.S.C. §
1396a(a)(43). For both the NPCS and MFTD programs, prior
approval is required for the provision of in-home shift
nursing care. 89 Ill. Admin. Code § 140.472(b); 89 Ill.
Admin. Code § 140.473(a). And for both programs,
“[a]pproval will be granted when, in the judgment of a
consulting physician * * * the services are medically
necessary and appropriate to meet the participant's
need.” 89 Ill. Admin. Code § 140.473(e). Thus,
those in the MFTD program do not necessarily receive more
in-home shift nursing services than those in the NPCS
program. For example, Plaintiffs identified evidence
indicating that during the time period from June 1, 2016 to
June 30, 2016, there were 220 persons in the MFTD program who
were receiving in-home shift nursing services at the same
monthly level or at a lower monthly level than named
Plaintiff Donegan. [42, at 4.] Plaintiffs also identified
evidence indicating that during the time period from June 1,
2016 to June 30, 2016, there were 104 persons in the MFTD
program who were receiving in-home shift nursing services at
the same monthly level or at a lower monthly level than named
Plaintiffs Campbell and Wines. Id.
to turning 21 years of age, named Plaintiffs were enrolled in
the NPCS program. Named Plaintiffs continue to receive
benefits through the NPCS program as a result of
Defendant's agreement in this case not to terminate
in-home shift nursing services received by any individual
currently enrolled in the program based on his reaching the
age of 21. [See 49.] If Defendant did terminate the services
that named Plaintiffs receive through the NPCS program, some
named Plaintiffs would likely be able to receive funding to
maintain some or all of the in-home shift nursing services
through HSP. The amount of in-home shift nursing services
Plaintiffs would be entitled to receive through HSP would be
determined by their respective DON scores.
respect to Plaintiff Blake Donegan, HFS has tentatively
determined that Mr. Donegan would be entitled to receive 24/7
care through HSP based on his prior DON score. Defendant
states that this determination is tentative because Mr.
Donegan's mother has not completed the application
necessary for HSP staff to review and assess his current
needs. HSP staff therefore had to use Mr. Donegan's DON
score from last year to arrive at the current tentative
respect to Plaintiff Antonio Campbell, HFS determined that
his DON score was too low to qualify for any benefits from
HSP. Mr. Campbell's DON score indicated that he is able
independently to prepare and eat food, bathe himself, dress
himself, use the telephone, change his sheets, use the
stairs, and take care of his oral hygiene.
respect to Plaintiffs Janelle Eaton and Kina Wines,
Plaintiffs contend that they would not qualify for the same
level of services through HSP that they received through the
NPCS program. Ms. Eaton and Ms. Wines have not completed the
paperwork necessary for Defendant to determine the amount of
services they would be entitled to receive through HSP.
However, they previously submitted applications for benefits
through HSP that resulted in DON scores that would only
entitle them to a fraction of the monthly budget for in-home
shift nursing they received through the NPCS program. Ms.
Eaton and Ms. Wines represent that they did not complete the
paperwork required by HSP because it would have been futile
to do so, given that they knew they would not receive funding
for the same level of in-home shift nursing hours.
certified as a class action, a proposed class must satisfy
the requirements of Federal Rule of Civil Procedure 23(a) and
one of the three alternative requirements in Rule 23(b).
Messner v. Northshore Univ. HealthSystem, 669 F.3d
802, 811 (7th Cir. 2012). Rule 23(a) provides that a named
party may sue on behalf of individuals who are similarly
situated if: (1) the class is so numerous that joinder of all
putative class members is impracticable
(“numerosity”); (2) there are questions of law or
fact common to the putative class
(“commonality”); (3) the claims or defenses of
the named party are typical of the claims or defenses of the
putative class members (“typicality”); and (4)
the named party will fairly and adequately protect the
interests of the class (“adequacy”). Fed.R.Civ.P.
23(a). “[A] proposed class must always meet the Rule
23(a) requirements.” Messner, 669 F.3d at 811.
“Because Rule 23(a) provides a gate-keeping function
for all class actions, ordinarily we would begin there and
only turn our attention to Rule 23(b) after we were certain
that all of Rule 23(a)'s requirements had been
met.” Bell v. PNC Bank, Nat. Ass'n, 800
F.3d 360, 374 (7th Cir. 2015).
certification is sought under Rule 23(b)(2), as it is here,
the proponent of the class must also show that “the
party opposing the class has acted or refused to act on
grounds that apply generally to the class, so that final
injunctive relief or corresponding declaratory relief is
appropriate respecting the class as a whole.”
Fed.R.Civ.P. 23(b)(2). Moreover, the class must also meet
Rule 23's “implicit requirement of
‘ascertainability, '” meaning that the class
is “defined clearly and based on objective
criteria.” Mullins v. Direct Digital, LLC, 795
F.3d 654, 659 (7th Cir. 2015).
bear the burden of proving that they are entitled to class
certification. Oshana v. Coca-Cola Co., 472 F.3d
506, 513 (7th Cir. 2006). Although class certification
proceedings are not “a dress rehearsal for the trial on
the merits, ” Messner, 669 F.3d at 811, for
purposes of deciding the certification question, the Court
does not presume that all well-pleaded allegations are true.
See Szabo v. Bridgeport Machs., Inc., 249 F.3d 672,
676-77 (7th Cir. 2001). Rather, before it allows a case to
proceed as a class action, the Court “should make
whatever factual and legal inquiries are necessary under Rule
23.” Id. at 676. “A party seeking class
certification must affirmatively demonstrate his compliance
with the Rule-that is, he must be prepared to prove that
there are in fact sufficiently numerous parties, common
questions of law or fact, etc.” Wal-Mart Stores v.
Dukes, 131 S.Ct. 2541, 2551 (2011). But the showing need
not be “to a degree of absolute certainty. It is
sufficient if each disputed requirement has been proven by a
preponderance of evidence.” Messner, 669 F.3d
at 811. The Court exercises broad discretion in determining
whether class certification is appropriate given the
particular facts of the case. Keele v. Wexler, 149
F.3d 589, 592 (7th Cir. 1998).
seek to certify a Rule 23(b)(2) class of:
All Medicaid-enrolled children under the age of 21 in the
State of Illinois who receive in-home shift nursing or had
received in-home shift nursing services, and when they obtain
the age of 21 years are subjected to reduced Medicaid funding
which reduced the medical level of care which they had been
receiving prior to obtaining 21 years. This class definition
does not include those persons who are enrolled in the State
of Illinois' Medically Fragile Technology Dependent
(MFTD) Medicaid Waiver program.
[29, at 1.] Plaintiffs present two theories for bringing
claims under the Americans with Disabilities Act (ADA), the
Rehabilitation Act (RA), and 42 U.S.C. Section 1983. First,
Plaintiffs argue that they are being discriminated against
because Defendant's policy of restricting enrollment in
the NPCS program to individuals under the age of 21 puts
Plaintiffs at risk of being institutionalized or suffering
serious harm. This theory of discrimination stems from the
Supreme Court's decision in Olmstead v. L.C.,
which held that developmentally disabled individuals should
be placed in community settings “when  the
state's treatment professionals have determined that
community placement is appropriate,  the transfer from
institutional care to a less restrictive setting is not
opposed by the affected individual, and  the placement can
be reasonably accommodated, taking into account the resources
available to the State and the needs of others with mental
disabilities.” 527 U.S. 581, 587 (1999). Failure to
comply with this integration mandate constitutes unlawful
discrimination. Id. at 597.
Plaintiffs argue that Defendant is discriminating between
disabled persons aging out of the NPCS program and disabled
persons aging out of the MFTD program, as disabled persons in
the MFTD program continue to receive in-home shift nursing
services based on medical necessity after they reach the age
of 21 while disabled persons in the NPCS program do
This theory of discrimination stems from language in
Amundson ex rel. Amundson v. Wisconsin Department of
Health Services, which indicates that individuals with
disabilities can establish intra-class claims of
discrimination by showing that they are being treated worse
than persons with other disabilities. 721 F.3d 871, 874 (7th
respect to Plaintiffs' first theory, Defendant does not
dispute Plaintiffs' interpretation of Olmstead.
However, Defendant does argue that Plaintiffs cannot satisfy
the requirements of Rule 23(a) or 23(b)(2). For the reasons
discussed below, the Court agrees that Plaintiffs fail to
satisfy the requirements of Rule 23 with respect to their
Olmstead theory of discrimination.
respect to Plaintiffs' second theory, Defendant argues
that Defendant misconstrues the meaning of Amundson.
Specifically, Defendant argues that “Plaintiffs should
not be allowed to create a class action under the theory that
Defendant does not offer them the exact same care is provided
to a non-comparable group of disable persons who have a
documented need for a ‘higher level' of care that
is more ‘technology dependent.'” [54, at 2.]
According to Defendant, Amundson does not provide a
basis for finding that a group is being discriminated against
simply because they do not receive the exact same benefits as
a different group whose medical needs are greater overall.
Id. at 1. Rather-according to Defendant-Plaintiffs
are misconstruing dicta from a Seventh Circuit case that
merely expressed concern over “the notion that a state
could provide the ‘best available' care to certain
disabled groups and ‘mediocre' care to certain
other disabled groups merely because the latter's care
had been more expensive.” Id. at 1.
Plaintiffs' theory is not that they are entitled to
“the exact same care” [54, at 2], or must be
subject to the same program [34, at 11], but rather that the
level of care to which they are entitled should be determined
by the same process-uncapped funding based on medical
necessity-as the MFTD population. Thus, even if the programs
do not serve comparable populations [54, at 12] and the MFTD
population needs a higher level of care than the NPCS/HSP
population, it still may be discriminatory under
Amundson to provide the “best available”
care for group A and “mediocre” care for group B.
Defendant's interpretation of Amundson may be
correct, but that goes directly to the merits of Plaintiffs
claim-not to whether Plaintiffs have satisfied the
requirements of Rule 23. Because the Court finds Plaintiff
can satisfy Rule 23 with respect to their Amundson
theory of discrimination if the class definition is altered
as provided below, the Court will grant class certification
with respect to this theory for the class defined below.