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From Health Law Daily, September 26, 2016

Illinois agency must find in-home nursing staff for eligible beneficiaries

By Kayla R. Bryant, J.D.

The Illinois Department of Healthcare and Family Services (HFS) must begin to find private duty nurses to provide in-home nursing care for Medicaid-eligible children who have been granted the home nursing benefit. The U.S. Court of Appeals for the Seventh Circuit affirmed an Illinois district court’s grant of a preliminary injunction requiring HFS to take action after it determined that a certified class was likely to prevail at trial. The class alleges that HFS violated the Medicaid Act (42 U.S.C. §1396a) by requiring patients’ parents to find their own nursing staff after granting the benefit (O.B. v. Norwood, September 23, 2016, Posner, R.).

Suit and injunction. The class action suit alleged that HFS violated the Medicaid statute because the agency did not arrange, or even attempt to arrange, for home nursing staff for class members who were entitled to such a benefit (see Action for in-home shift nursing services by disabled children will proceed, March 23, 2016). A district judge certified a class of children whose parents had been unable to hire nurses to cover the benefit hours granted by HFS (see Children receiving insufficient in-home shift nursing services proceed as class, May 19, 2016). The judge also issued a preliminary injunction requiring HFS to immediately arrange in-home nursing services to all class members and similarly-situated Medicaid-eligible children under the age of 21.

Representative. The class representative child, known as O.B., was a Medicaid enrollee approved for home nursing services. O.B. was diagnosed with Down Syndrome, lung disease, and cardiac abnormalities. Due to his conditions, he was dependent on a ventilator, could not digest food normally, and was unable to take oral nutrition supplements designed for those with digesting issues. After being hospitalized for respiratory failure at nine months old, he was approved for nearly a $20,000 monthly budget for nursing services up to 18 hours a day at home. The parents were required to find nurses before he could be released from the hospital. Almost a year went by before they were able to obtain the adequate staff and have their son discharged.

Injunction. On appeal, HFS claimed that the injunction was not enforceable due to vagueness, but the court disagreed and found that the order was reasonably detailed. The court also found that the district judge had a reasonable basis for predicting the class’s likelihood of prevailing at trial.

HFS’ primary defense against the suit is that the Medicaid statute does not require it to ensure that medical care was receives. The court noted that HFS was the entity that decided home nursing was in fact the proper treatment for the class members but, despite this decision, left the task of finding multiple qualified pediatric nurses up to the parents, who are not in the best position to secure such staff due to access and financial issues. The appeals court noted that even hospitals and nursing agencies may be of little to no help to parents in their search. Despite HFS’ arguments that patients could seek care "elsewhere" (which the court interpreted as hospitalization) if home nursing care could not be obtained, the court was not convinced that hospitalization was adequate to the patients’ needs. Finally, the court noted what it called an "oddity" in the appeal: the state authorized nearly $20,000 per month for home nursing services for O.B., but O.B.’s hospitalization cost the state approximately $78,000 per month. The preliminary injunction was affirmed.

The case is No. 16-2049.

Attorneys: Robert Hugh Farley, Jr. (Robert H. Farley, Jr., Ltd.) for O. B. Linda Boachie-Ansah, Office of the Attorney General, for Felicia F. Norwood, Director, Illinois Department of Healthcare and Family Services.

Companies: Illinois Department of Healthcare and Family Services

MainStory: TopStory CaseDecisions CMSNews HomeNews MedicaidNews EligibilityNews IllinoisNews IndianaNews WisconsinNews

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