M.A. v. Norwood
Decision Date | 23 September 2015 |
Docket Number | Case No. 15 C 3116 |
Citation | 133 F.Supp.3d 1093 |
Parties | M.A. by and through his parents Miguel Avila, Sr. and Hermina Avila, F.L. by and through his mother, Jacquetta Pearson, Y.R. by and through her mother Carolina Barranco, H.S. by and through his parents Ricardo Soria and Georgina Rivera, individually and on behalf of a class, Plaintiffs, v. Felicia F. Norwood, in her official capacity as Director of the Illinois Department of Healthcare and Family Services, Defendant. |
Court | U.S. District Court — Northern District of Illinois |
Robert Hugh Farley, Jr., Robert H. Farley, Jr., Ltd., Mary Denise Cahill, Cahill and Associates, Naperville, IL, Michelle N. Schneiderheinze, Hunziker Heck & Schneiderheinze LLC, Peoria, IL, Sarah M. O'Connor, Shannon Marie Ackenhausen, Thomas D. Yates, The Legal Council of Chicago, Chicago, IL, for Plaintiffs.
John E. Huston, Karen Elaine Konieczny, Illinois Attorney General's Office, Chicago, IL, for Defendant.
Children identified as M.A., F.L, Y.R., and H.S., who have been receiving in-home shift nursing services under Illinois's Medicaid program, have filed this putative civil rights class action against Felicia F. Norwood, Director of the Illinois Department of Healthcare and Family Services (HFS) alleging violations of (1) the Due Process Clause of the Fourteenth Amendment, (2) the Early and Periodic Screening, Diagnostic and Treatment (EPSDT) provisions of Title XIX of the Social Security Act (the Medicaid Act), 42 U.S.C. §§ 1396 et seq., (3) Title II of the Americans with Disabilities Act (the ADA), 42 U.S.C. § 12132, and (4) section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a). On April 22, 2015, this court entered a temporary restraining order enjoining defendant (the Director) from terminating the services pending resolution of the merits of plaintiffs' claims. (Dkt. 16). Then on May 12, 2015, by agreement of the parties, the court continued the temporary restraining order until further order of the court. (Dkt. 20.) The Director has moved to dismiss claims I–V under Federal Rule of Civil Procedure 12(b)(6) and claims VI and VII under Federal Rule of Civil Procedure 12(b)(1). (Dkt. 29.) For the reasons stated below, the Director's motion is granted in part and denied in part.1
Illinois has chosen to operate a Medicaid program to provide federally-funded, in-home shift nursing services to needy children under the age of twenty-one. (Id. ¶ 68.) Illinois' "Nursing and Personal Care Services Program" is administered through HFS. At issue here is the federal requirement that Illinois must provide in-home shift nursing services to Medicaid-eligible children when "necessary to correct or ameliorate their medical illness and conditions." See 42 U.S.C. § 1396d(a).3
Under Illinois' eligibility standards, in-home nursing shift nursing services "will be granted when, in the judgment of a consulting physician and subject to the review of the professional staff of the Department, the services are medically necessary and appropriate to meet the participant's medical needs." 89 ILL. ADM. CODE § 140.473(e). Prior to January 1, 2014, Illinois' procedure for considering an applicant's eligibility consisted of the submission of written statements from the applicant's treating physicians articulating the applicant's medical need for a certain number of weekly hours of home nursing services and a review of that written statement by an HFS employee. (Am. Compl. ¶ 77.)
Sometime between January 2014 and February 2015, however, Illinois began applying a new eligibility standard during re-authorization reviews of in-home shift nursing service for at least 178 previously approved participants. (Id. ¶ 52.) The new standard appears to include an assessment tool (with an associated scoring methodology), which had not been used prior to January 2014. (Id. ¶¶ 84–85.) Although this eligibility standard has not been published, HFS has applied it to deny, terminate, and reduce services for children with complex medical needs. (Id. ¶ 91.) Of those cases reviewed using the new eligibility standard, 66% of the children were determined to be no longer eligible, 32% were determined eligible for a reduced level of services, and only 2% were determined eligible for their previously approved level of services. (Id. ¶ 53.)
During December 2014 and January 2015, plaintiffs received a notice that the in-home shift nursing care they had been receiving was to be reduced or terminated. (Id. ¶¶ 31, 35, 40, 45, 121, 130, 139, 148.) The notice followed a form template stating that services had been denied, terminated, or reduced "based on individual assessment and medical documents provided." (Id. ¶¶ 12, 102–04.) The notice did not identify the standard being applied or state any medical basis for the determination. (Id. ¶¶ 102–106.)
HFS did not publish or publicly cite any rule, policy or regulation articulating its policy. (Id. ¶ 160.) Plaintiffs have inferred that the new standard includes an exception process but, without information as to what exceptions exist, they have been denied the opportunity to meaningfully seek exceptions. (Id. ¶¶ 162–65.)
Further, the notice did not provide adequate information about how to file an appeal. (Id. ¶ 110.) Specifically, the notice contained erroneous and misleading information regarding the appeals process and failed to inform plaintiffs of their right to continued services during the pendency of an appeal. (Id. ¶¶ 107, 111, 116.)
Plaintiffs' health, safety, and development are threatened with irreparable harm if their services are not reinstated. (Id. ¶¶ 124, 133, 142, 151.) If their in-home shift nursing services are terminated or reduced, they will have to be institutionalized to receive necessary care or, if they choose to remain living at home with reduced or no in-home nursing services, they face a strong possibility of life threatening episodes. (Id. ¶¶ 125, 134, 143, 152.)
Plaintiffs plead five claims:
Claim 1: The Director's current eligibility standard is unreasonable, unwritten, and arbitrary in violation of their rights to due process of law.
Claim II: The Director's written notice to the plaintiffs that their services have been terminated or reduced are inconsistent with 42 C.F.R. § 431.210(b) and violate their right to due process in that (a) they do not adequately state the agency's action or the reasons it and (b) fail to state what exceptions are available and whether an exception and an appeal can be pursued concurrently.
Claim III: The Director's written notice and failure to publish the eligibility standard by which their applications were measured deny plaintiffs procedural rights under the Act and of due process in that they (a) fail to adequately notify them of their right to appeal the decision and to have a "fair hearing" and (b) fail to inform the plaintiffs that their benefits could be continued pending a decision on their appeal.
Claim IV: The Director's termination or reduction of plaintiffs' in-home nursing services deprives them of their federal statutory rights because they are being deprived of their right to services which are necessary to correct or ameliorate their conditions, required by 42 U.S.C. §§ 1396a(a)(43), 1396d(a) and 1396d(r)(5).
Claim V: The Director's pattern and practice of terminating in-home nursing services to the plaintiffs without first determining their eligibility under all other Medicaid programs violates their statutory rights under 42 U.S.C. § 1396a(a)(8) and the due process clause.
Claim VI: The Director's termination or reduction of in-home nursing services violates plaintiffs' rights under the ADA by tending to segregate them into institutions rather than integrating them into settings appropriate to their needs and abilities, as required by 42 U.S.C. § 12132 and an implementing regulation, 28 C.F.R. § 35.130(d).
Claim VII: The Director's termination or reduction of in-home nursing services and elimination of funding violates plaintiff's rights under § 504 of the Rehabilitation Act by tending to segregate them into institutions rather than integrating them into settings appropriate to their needs and abilities, as required by 42 U.S.C. § 794(a) and an implementing regulation, 28 C.F.R. § 41.51(d).
Plaintiffs ask the court to enjoin the Director from applying the new eligibility standard to review applications or renewals of their in-home nursing services until (a) she publishes an ascertainable and lawful standard that is no less restrictive than the federal standard for EPSDT benefits; (b) she gives notice of termination or reduction in services that permit plaintiffs to meaningfully participate in a fair hearing; and that (c) plaintiffs' benefits be continued until their eligibility can be redetermined using a published, ascertainable, and lawful standard.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) challenges a complaint for failure to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). In ruling on a Rule 12(b)(6) motion, the court accepts as true all well-pleaded facts in the plaintiff's complaint and draws all reasonable inferences from those facts in the plaintiff's favor. Active Disposal, Inc. v. City of Darien, 635 F.3d 883, 886 (7th Cir.2011) ; Dixon v. Page, 291 F.3d 485, 486 (7th Cir.2002). To survive a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a claim's basis but must also establish that the requested relief is plausible on its face. SeeAshcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; Bell Atl. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The allegations in the complaint must be "enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 127 S.Ct. 1955. The plaintiff need not plead legal theories. Hatmaker v....
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