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Donegan v. Norwood

United States District Court, N.D. Illinois, Eastern Division

December 21, 2017

BLAKE DONEGAN, et al., Plaintiffs,
v.
FELICIA NORWOOD, as Director of the Illinois Department of Healthcare and Family Services, Defendant.

          MEMORANDUM OPINION AND ORDER

          ROBERT M. DOW, JR. UNITED STATES DISTRICT JUDGE.

         Before the Court is Plaintiffs' amended motion for class certification [29]. For the reasons set forth below, the Court grants Plaintiffs' amended motion for class certification [29] in part. This case is set for further status hearing on January 12, 2018 at 10:30 a.m.

         I. Background

         The 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.[1] 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.[2] Instead, Plaintiffs and the putative class may seek services through the Home Services Program (HSP).

         The 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.

         HSP is “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.

         Unlike 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).

         A. Class Allegations

         Plaintiffs 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.

         As 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.]

         Like 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.

         B. Named Plaintiffs

         Prior 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.

         With 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 determination.

         With 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.

         With 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.

         II. Legal Standard

         To be 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).

         When 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).

         Plaintiffs 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).

         III. Analysis

         Plaintiffs 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 [1] the state's treatment professionals have determined that community placement is appropriate, [2] the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and [3] 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.

         Second, 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 not.[3] 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 Cir. 2013).

         With 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.

         With 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.

         But 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.

         Ultimately, 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.

         A. ...


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