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MFTD Waiver Families

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

New Lawsuit Filed

November 30, 2015

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

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