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MFTD Waiver Families

Support for families of children in the Medically Fragile, Technology Dependent Waiver

Information on the Failure to Provide Nursing Case

The Legal Team of  Robert H. Farley, Jr., the Legal Council for Health Justice through Attorneys Thomas D. Yates and Shannon M. Ackenhausen and the National Health Law Program through Attorneys Jane Perkins and Sarah Somers, have filed a Federal Class Action Lawsuit against the State of Illinois on behalf of Medicaid-eligible children residing in Illinois with disabling and chronic health conditions.  

The lawsuit was filed as a result of the systemic failure by the State of Illinois to arrange for in-home shift nursing services.  The State acknowledges that in-home shift nursing services are medically necessary for all named Plaintiffs and Class members. Yet, the State, has failed to arrange for in-home shift nursing services as mandated by the federal Early and Periodic Screening, Diagnostic and Treatment (EPSDT) provisions of the Medicaid Act. The State’s actions also violates the Americans with Disabilities Act (ADA), the federal Rehabilitation Act and other provisions of the Medicaid Act, which results in the Plaintiffs and Class members being either institutionalized or facing the serious risk of institutionalization.

Children are being unnecessarily hospitalized (institutionalized) as they are unable to be discharged from the hospital due to the inability of nursing agencies to fully staff the child’s case. Many other children live at home and face a serious risk of institutionalized as the nursing agencies are unable to fully staff the child’s case. Moreover, these children are also at risk of experiencing additional medical complications at home due to the inability of the State to arrange for the delivery of all the medically approved nursing hours for the children. 

Among the State of Illinois system-wide policies, practices, and procedures that cause this harm to plaintiffs are a low reimbursement rate for in-home shift nursing services. The Defendant, the Illinois Department of Healthcare and Family Services will not pay a nursing agency more than $35.03 per hour for a RN and $31.14 per hours for a LPN for in-home shift nursing services for the Plaintiffs and Class members.  In contrast, the Defendant will pay $72.00 per hour for shift nursing services under certain circumstances not applicable to the Plaintiffs and Class.  Moreover, another State agency, the Illinois Department of Children and Family Services will pay approximately $45.00 per hour for in-home shift nursing services.  As Medicaid is a joint state-federal program, the federal government would reimburse Illinois for approximately 50% of any hourly rate increase.  

On December 3, 2015, attorneys for the Plaintiffs and proposed Class will appear in Federal Court and ask the Court to order the Defendant to take all immediate and affirmative steps necessary to correct her system-wide policies, practices, and procedures in order to arrange for adequate levels of previously-approved, medically necessary in-home shift nursing services to the Plaintiffs and Class.  

FOR FURTHER INFORMATION, you may contact Attorney Robert H. Farley, Jr. or any of the attorneys listed below:    

Robert H. Farley, Jr.
Robert H. Farley, Jr., Ltd.
1155 S. Washington Street
Naperville, IL 60540
630-369-0103
farleylaw@aol.com 

Shannon M. Ackenhausen
Thomas D. Yates
Legal Council for Health Justice
180 N. Michigan Avenue, Suite 2110
Chicago, IL 60601
312-427-8990
tom@legalcouncil.org 

Jane Perkins
Sarah Somers
National Health Law Program
101 E. Weaver Street
Suite G-7
Carrboro, NC 27510
919-968-6308
perkins@healthlaw.org

Status of the Case

In August 2016, the judge issued a motion to enforce the preliminary injunction granted earlier this year. The state will be mandated to provide a statement of what efforts they have taken to staff cases every 30 days for 4 months and provide staffing levels for cases every 30 days for 4 months. Read the Order here.

In April 2016, the judge issued an injunction requiring HFS [Illinois' Medicaid agency] to "take immediate and affirmative steps to provide the very in-home shift nursing services that HFS approved."

More than 1,200 children have been approved for in-home nursing services based on their high level of medical need. Many of these children are dependent on complex medical regimens for routine bodily functions, such as eating, drinking, breathing, and oxygen regulation. Yet, the State has failed to arrange for in-home nursing, resulting in unnecessary and costly institutionalization, heightened risk of medical complications, and diminished quality of life.

The Plaintiffs are represented by the legal team of Robert H. Farley, Jr., Legal Council for Health Justice (attorneys Thomas D. Yates and Shannon M. Ackenhausen), and National Health Law Program (attorneys Jane Perkins and Sarah Somers). The case, O.B. v Norwood, represents a new frontier in Medicaid case law after a series of Supreme Court rulings limiting the ability of advocates to turn to the courts to hold States accountable for legally-required services.

Lead counsel Robert H. Farley, Jr. notes that, "As I often tell parents who have a disabled child, if you are having problems either obtaining funding or approval for services or having problems receiving the services which have been previously approved by the State, do not simply accept the status quo. It may be possible that the State is not living up to its legal responsibility, so please contact me and maybe we can make a difference in your child's life."

"Federal Medicaid law requires states to ensure that enrolled children receive all covered services that they need to address their disabilities and illnesses," said Jane Perkins, legal director, National Health Law Program, "The court's well-reasoned decision supporting the order stands for the unremarkable proposition that a state Medicaid agency must make sure that child beneficiaries actually receive the services the agency has determined are medically necessary."

In the opinion granting the injunction (issued on March 21), Judge Kocoras stated that the Illinois Medicaid Director "knows what those services are and for whom they were approved because her agency approved them." The judicial opinion further emphasized the public's interest in ensuring that the medically complex plaintiffs receive adequate services. "The public has an interest in seeing care and treatment that HFS [Illinois's Medicaid agency] has already determined to be medically necessary fully provided to the disabled children who seek it here."

The ruling also makes good sense for cash-strapped Illinois: "The State is paying more money to institutionalize sick children instead of utilizing more effective and less costly community-based solutions that this order requires," says Tom Yates, executive director of Legal Council for Health Justice, "It makes fiscal and moral sense." Tom is also co-counsel on two landmark consent decrees (Memisovski v. Maram and Beeks v. Bradley) that have been leveraged to maintain Medicaid reimbursements to Illinois' safety net hospitals and medical providers despite an ongoing FY16 state budget impasse.

Media Coverage of The Case

AP Article: http://www.fox32chicago.com/news/local/118662276-story

ABC 20 news story: