Arellano v. the Dep't of Human Serv., No. 2–09–0581.

• Court: United States Appellate Court of Illinois
• Writing for the Court: West Codenotes
• Citation: 348 Ill.Dec. 23,402 Ill.App.3d 665,943 N.E.2d 631
• Parties: Elvira ARELLANO, Plaintiff–Appellant,v.The DEPARTMENT OF HUMAN SERVICES, Carol L. Adams, Secretary of the Department of Human Services, and The Department of Healthcare and Family Services, Defendants–Appellees.
• Decision Date: 16 June 2010
• Docket Number: No. 2–09–0581.

402 Ill.App.3d 665
943 N.E.2d 631
348 Ill.Dec. 23

Elvira ARELLANO, Plaintiff–Appellant,
v.
The DEPARTMENT OF HUMAN SERVICES, Carol L. Adams, Secretary of the Department of Human Services, and The Department of Healthcare and Family Services, Defendants–Appellees.

No. 2–09–0581.

Appellate Court of Illinois, Second District.

June 16, 2010.

West CodenotesValidity Called into Doubt42 C.F.R. § 440.255(c); 89 Ill.Admin. 120.310(b)(3)

[943 N.E.2d 632]

Dennis A. Brebner, Brenda K. Manning, Dennis A. Brebner & Associates, Waukegan, IL, for Elvira Arellano.Lisa Madigan, Attorney General, State of Illinois, Michael A. Scodro, Solicitor General, Carl J. Elitz, Assistant Attorney General, Chicago, IL, for Carol Adams.Justice O'MALLEY delivered the opinion of the court:

[348 Ill.Dec. 24 , 402 Ill.App.3d 665] Plaintiff, Elvira Arellano, appeals from the ruling of the circuit court of Winnebago County affirming the decision of defendant, the Illinois Department of Human Services (the Department), denying her Medicaid benefits in connection with her hospitalization and treatment for pneumonia. (Plaintiff's complaint also named as

[348 Ill.Dec. 25 , 943 N.E.2d 633]

defendants [402 Ill.App.3d 666] the Illinois Department of Healthcare and Family Services and Carol Adams, the Secretary of the Department.) The lone issue presented in this appeal is whether the medical services plaintiff received were in reaction to the “sudden onset” of an acute medical condition, so as to qualify her, an alien not lawfully admitted for permanent United States residence, for Medicaid benefits. However, for the reasons that follow, we conclude that the “sudden onset” requirement impermissibly modifies the Medicaid statute and thus cannot be enforced. Accordingly, we vacate the Department's decision, which was premised on the “ sudden onset” requirement, and remand with directions.

The record from the proceedings before the Department includes medical records from plaintiff's hospitalization as well as a transcript of plaintiff's testimony at a Department administrative hearing. That evidence contains various, and conflicting, descriptions of the timing and character of the symptoms that led to plaintiff's hospitalization.

In her testimony, plaintiff indicated that she visited a doctor a “few days” prior to her admission into the hospital.

A hospital record of plaintiff's history and physical, from May 7, 2006, the first day of her hospitalization, indicates that she went to the hospital complaining of shortness of breath. According to the medical record, plaintiff “state[d] that she was in [her] usual state of health until [the prior] evening around 11 o'clock when she went to bed. She had shortness of breath and the shortness of breath progressed and was no better, and she had trouble sleeping throughout the night so she came to the [hospital] * * * in the morning.” The report continued: “[Plaintiff] state[d] that she [had] been having a nonproductive cough starting about three weeks [prior] and overall the cough frequency and intensity [was] lessening.”

A second May 7 history and physical report indicates that plaintiff (and the family members who accompanied her to the hospital and translated for her) “report[ed] that approximately two to three weeks ago [plaintiff] began feeling [ill] with shortness of breath as the princip[al] symptom. Over the ensu[ ]ing two weeks, [it] has gradually progressed and she first sought medical attention approximately three days ago at which time inhalers * * * were prescribed. Over the weekend, there was no improvement and thus the patient sought medical attention today [at the hospital] as her symptoms persisted and worsened.”

A May 7 emergency-room report indicated that plaintiff “state[d] that since Friday [May 5] she has been feeling short of breath and saw her doctor that day. She state[d] she [had] gotten much worse since then.”

[402 Ill.App.3d 667] The record of a May 10 pulmonary consultation indicated that the reason for the consult was that plaintiff was suffering from “diffuse lower lobe consolidation with hypoxemic respiratory failure and low grade fever, which reportedly began abruptly one day prior to her hospital admission on 5/7/ 2006, but was preceded by a three week history of nonproductive cough that apparently [had] improved.”

The record of a May 13 infectious-disease consultation indicated as follows, in pertinent part:

“[Plaintiff] presented one week ago with respiratory distress. She is primarily Spanish-speaking. There was a translator in the room and, even with the translator, I had a hard time getting the patient down. At one point, she says that she became acutely ill a day or so prior to admission, with cough and shortness of breath. However, at another

[348 Ill.Dec. 26 , 943 N.E.2d 634]

time, she will say that she noticed that she was getting winded a week or two before she came to the hospital, and it is really hard to pin her down as to which is the best description. As best I can tell, it sounds like a week or two before admission, she knew there was something different with maybe a little dyspnea [ i.e., difficulty breathing] with exertion progressively, although no orthopnea [ i.e., inability to breathe unless in an upright position], and then it got acutely worse just prior to admission.”

The record of a May 10 rheumatology consultation stated as follows:

“[Plaintiff] was in her usual state of health until about three weeks ago when she started [to] have dyspnea on exertion and dry cough. She denied fever, but complained of upper back pain which had been going on for three years. Her symptoms got worse three days prior to admission to the point that she could not sleep the day before admission.”

The same May 13 consultation record indicated that plaintiff reported having been in “excellent health” prior to the onset of her illness. The medical impression in the record indicated that plaintiff “presents with what sound[ed] like a two- to three-week lower respiratory course without fever but with a nonproductive cough, progressive dyspnea with exertion, and now dyspneic at rest.”

Her discharge summary, produced on May 25, indicated that plaintiff “came to [the hospital] complaining of shortness of breath that [had] not been getting better. She [had] been having difficulty sleeping at night and she [had] also been complaining of a nonproductive cough which started approximately three weeks [prior to her hospitalization]. Her breathing [had] been getting progressively worse.”

The records in total indicate that plaintiff was treated for pneumonia.

[402 Ill.App.3d 668] In her testimony, plaintiff said (through an interpreter) that her condition worsened just before she went to the hospital on May 7 (and in the days after she visited a doctor) and that she went to the hospital emergency room because she “had a high fever.” She denied having had any difficulty sleeping the night before she went to the hospital. When asked whether she experienced difficulty breathing before she went to the hospital, plaintiff stated that “when she got up she felt like she was going to fall.” When asked to clarify when her symptoms began, in light of medical records saying that she had experienced shortness of breath two to three weeks before she went to the hospital, plaintiff answered that “it's been three months,” and, in response to a follow-up question, she agreed that she was referring to three months before she went to the hospital. When asked if she had sought medical attention before she went to the hospital, she said that she went to the doctor “like two, three weeks before” she went to the hospital. (Earlier in her testimony, she had indicated that she had seen the doctor a few days, not weeks, before her hospital admission.) Plaintiff explained that she had initially attributed her cough to a minor cold, and she agreed that she eventually went to the hospital when the symptoms worsened to the point that she could not tolerate them and realized she was suffering from something more than a cold.

The Department's client-assessment unit initially denied plaintiff benefits because plaintiff's cough had begun three weeks prior to her hospitalization and progressed thereafter and, thus, “did not occur suddenly and unexpectedly.” In a second decision, the client-assessment unit stated that plaintiff's “symptoms had been present x 3 weeks prior to her admission [and] she could have likely been seen by her doctor * * * before this [hospitalization]

[943 N.E.2d 635 , 348 Ill.Dec. 27]

[a]dmission [and] a sudden acute life threatening condition was not demonstrated on admission. Therefore emergent need [was] not met.” ¹ In a third decision, the client-assessment unit noted that the records indicated that plaintiff's symptoms had progressed over three weeks before worsening and causing her to visit the hospital. Thus, the client-assessment unit again concluded that plaintiff's condition was “[n]ot emergent * * *, sudden occurrence of condition is not noted.” Plaintiff continued to pursue benefits and eventually obtained the Department decision she now appeals. (Her testimony was taken after the client-assessment unit decisions but before the Department decision.) That Department decision held as follows, in pertinent part:

[402 Ill.App.3d 669] “In order to receive Emergency Medical Assistance, an ineligible non citizen must have a medical condition that occurs suddenly and unexpectedly. The record shows that [plaintiff] had been experiencing a progression of symptoms for at least three weeks before she sought treatment at the hospital. Accordingly, the record shows [plaintiff's] medical condition did not occur suddenly and unexpectedly * * * in order to be eligible for Emergency Medical Assistance. Accordingly, the decision of [the client-assessment unit] that [plaintiff] was not eligible for Emergency Medical Assistance will be upheld.”

On administrative review, the circuit court noted the...