Hampe v. Hamos

• Decision Date: 08 January 2013
• Docket Number: No. 10 C 3121.,10 C 3121.
• Parties: William R. HAMPE, et al., Plaintiffs, v. Julie HAMOS, Director, Illinois Department of Healthcare and Family Services, Defendant.
• Court: U.S. District Court — Northern District of Illinois

917 F.Supp.2d 805

William R. HAMPE, et al., Plaintiffs,

v.Julie HAMOS, Director, Illinois Department of Healthcare and Family Services, Defendant.

No. 10 C 3121.

United States District Court,

N.D. Illinois,

Eastern Division.

Jan. 8, 2013.

Robert Hugh Farley, Jr., Robert H. Farley, Jr., Ltd., Mary Denise Cahill, Cahill and Associates, Naperville, IL, for Plaintiffs.

Kristen Kocourek, pro se.

Karen Elaine Konieczny, John E. Huston, Illinois Attorney General's Office, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

RUBEN CASTILLO, District Judge.

Eight medically fragile disabled individuals currently receive funding from the Illinois Department of Healthcare and Family Services (“DHFS”) for approximately 16 hours a day of in-home skilled nursing services. These services allow the disabled individuals, Plaintiffs in this case, to avoid constant hospitalization. As of their twenty-first birthdays, Plaintiffs have faced a significant reduction in funding for those services. Accordingly, William R. Hampe, by and through his mother/guardian, Jill Hampe; Richard L. Winfrey, III; Adam Cale; Olivia Welter, by and through her parents/guardians, John and Tamara Welter; Phillip Baron, by and through his mother/guardian, Barbara Baron; Jessica L. Lytle, by and through her grandmother/guardian Judith A. Lytle; Jacob Stracka, by and through his parents/guardians, David and Nicole Stracka; and Charles Stout bring this class action on behalf of themselves and all other similarly situated individuals (collectively, “Plaintiffs”) against Julie Hamos (“Defendant”) in her official capacity as Director of DHFS. (R. 54, Third Am. Compl.) Plaintiffs allege that Defendant's policies and practices violate the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), Plaintiffs seek declaratory and injunctive relief. (R. 54, Third Am. Compl. at 54–55.) Both parties have moved for summary judgment, each claiming that it is entitled to judgment as a matter of law. (R. 171, Pls.' Mot.; R. 191, Def.'s Mot.) Presently before the Court are these cross-motions for summary judgment. For the reasons set forth herein, both motions are denied.

RELEVANT FACTS¹

This case proceeds on behalf of a certified class comprised of:

All persons who are enrolled or will be enrolled or were enrolled in the State of Illinois' Medically Fragile, Technology Dependent Medicaid Waiver Program (MF/TD) and when they obtain the age of 21 years are subjected to reduced Medicaid funding which reduces the medical level of care which they had been receiving prior to obtaining 21 years.

(R. 75, Mem. Op. at 11.) Plaintiff Jessica Lytle is not a class member because she was not enrolled in Illinois' MF/TD waiver prior to turning twenty-one years of age. (Def.'s Resp. to Pls.' Facts ¶ 5.) Lytle received funding for levels of in-home skilled nursing services similar to those received by the class members through the Illinois Department of Children and Family Services as adoption assistance because she was adopted by her grandmother. (R. 173, Pls.' L.R. 56.1 Materials, Ex.7 ¶ 5.)

I. Medicaid

Medicaid is a joint federal- and state-funded program that provides necessary medical assistance to disabled individuals whose income and resources are insufficient to meet the cost of the medical care they require. See42 U.S.C. § 1396; 305 Ill. Comp. Stat. 5/5–1. States that opt to participate in Medicaid must operate the program in conformity with federal statutory and regulatory requirements and must submit a Medicaid plan to the Department of Health and Human Services (“HHS”) for approval. 42 U.S.C. §§ 1396, 1396a. In Illinois, DHFS is the state agency responsible for operating Medicaid. 305 Ill. Comp. Stat. 5/2–12(4); (Def.'s Resp. to Pls.' Facts ¶ 70). Illinois pays Medicaid-enrolled providers for all mandatory Medicaid services provided to eligible persons, but not for all optional services. (Pls.' Resp. to Def.'s Add'l Facts ¶¶ 141–42.) Mandatory Medicaid services are those that Congress requires participating states to provide; these services include, among others, medically necessary hospitalizations, inpatient hospital services, physician services, long-term care (nursing facility) for individuals over twenty-one years of age, and Early and Periodic Screening, Detection and Treatment (“EPSDT”) services. 42 C.F.R. § 440.1 et seq.; (Pls.' Resp. to Def.'s Add'l Facts ¶ 140; Ex. A to Pls.' Resp. to Def.'s Add'l Facts at 29). Medicaid-eligible admissions to pediatric hospitals are reimbursed on a per diem basis in Illinois. Ill. Admin. Code tit. 89, §§ 148.250–148.300. Medicaid-eligible admissions to general hospitals are reimbursed at a diagnosis-related group rate. Ill. Admin. Code tit. 89, § 149.50.

HHS grants Home and Community–Based Services (“HCBS”) waivers that allow a state to provide services not otherwise covered by the state's Medicaid plan as an alternative to institutionalizing individuals within a target group. 42 U.S.C. § 1396n(c)(1). Illinois has implemented a total of nine HCBS waivers, including the MF/TD waiver and the Persons with Disabilities waiver in the Home Services Program (“HSP”). (Def.'s Resp. to Pls.' Facts ¶ 74.)

A. Services for children

EPSDT services are designed to serve as Medicaid's well child program and provideregular screenings, immunizations, and primary care services. 42 U.S.C. § 1396d(r); Ill. Admin. Code tit. 89, § 140.485. Individuals over the age of twenty-one are not eligible for EPSDT services. 42 U.S.C. § 1396d(a)(4)(B). Through EPSDT, Congress requires states to provide payment for any medically necessary service, including optional services, to Medicaid-eligible children under the age of twenty-one. (Def.'s Resp. to Pls.' Facts 182.) 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). Any limitations that Illinois' Medicaid Plan imposes upon certain services do not apply to individuals who receive services through EPSDT. Id.

HCBS waivers, such as the MF/TD waiver, may supplement, but may not supplant, EPSDT services. Ill. Admin. Code tit. 89, § 120.530(d). The MF/TD waiver serves children under the age of twenty-one by providing in-home services to allow the recipients to avoid institutional placements. 305 Ill. Comp. Stat. 5/5–2.05; Ill. Admin. Code tit. 89, § 120.530(b). The MF/TD waiver is designed to serve children who require a hospital level of care or a skilled nursing home level of care. Ill. Admin. Code tit. 89, § 120.530(b). Services that are available only under the MF/TD waiver include respite care, environmental modifications, special medical supplies and equipment, medically supervised day care, family and nurse training, and placement maintenance counseling. Ill. Admin. Code tit. 89, § 120.530(d). Children participating in the MF/TD waiver also receive other covered Medicaid services, such as hospital care, medical equipment and supplies, and skilled and private duty nursing services. Id.;Ill. Admin. Code tit. 89, § 140.3(b). Skilled nursing is the primary service received by MF/TD waiver participants, although it is covered by EPSDT rather than the MF/TD waiver. (Def.'s Resp. to Pls.' Facts ¶ 81; Pls.' Resp. to Def.'s Add'l Facts at ¶¶ 154–55.) Skilled nursing is an optional service that Illinois' Medicaid Plan does not provide for adults but is required to provide for children as an EPSDT service. SeeIll. Admin. Code tit. 89, §§ 140.3(c), 140.485.

The MF/TD waiver is managed by DHFS, and DHFS nurses and physicians make all eligibility determinations. Ill. Admin. Code tit. 89, § 120.530(e). Participants' care plans are developed by DHFS and the University of Illinois, Division of Specialized Care for Children (“DSCC”) with input from their attending physicians to ensure that participants may be cared for safely in the home within the individual cost limit. Ill. Admin. Code tit. 89, § 120.530(f). DSCC is responsible for the day-to-day operations of the MF/TD waiver. Ill. Admin. Code tit. 89, § 120.530(c). DHFS has the final review and approval of all care plans. Ill. Admin. Code tit. 89, § 120.530(f).

The MF/TD waiver has the capacity for 700 children, and it served 627 children in fiscal year 2010. (Def.'s Resp. to Pls.' Facts 12.) Between January 1, 2010, and December 31, 2013, 51 participants will turn twenty-one years old and therefore “age out” of the waiver. ( Id. ¶ 4.) When participants age out, their options for continued long-term, Medicaid-funded care are either HSP services or nursing home facilities. ( Id. ¶ 54.) Most participants in the MF/TD waiver transition into the Persons with Disabilities waiver, part of the HSP, once they turn twenty-one. ( Id. ¶ 105.)

B. Services for adults

Private duty nursing is an optional service that states may choose to cover or not in their Medicaid plan. 42 U.S.C. §§ 1396a(10)(A), 1396d(a). Illinois' Medicaid Plan does not cover private duty nursing. (Pls.' Resp. to Def.'s Add'l Facts ¶ 143); seeIll. Admin. Code tit. 89, § 140.3(c). The 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.” Ill. Admin. Code tit. 89, § 676.30(j). Waivers under the HSP provide funding based on the cost of a nursing home level of care for adults with physical disabilities. Ill. Admin. Code tit. 89, § 679.50. An applicant to the HSP is assigned a Determination of Need (“DON”) score based on his impairment and need for care. Ill. Admin. Code tit. 89, § 676.30(d). 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...