Sick Children Fight Illinois Budget Cuts

     CHICAGO (CN) – “Draconian” state budget cuts will force more than 1,000 medically fragile disabled children out of their homes and into institutions and will reduce or eliminate their Medicaid, six families say in a federal class action.
     “Effective September 1, 2012, the State of Illinois is unraveling 27 years of community based services to medically fragile children by making Draconian cuts to Medicaid services to the plaintiffs and putative class which puts them at risk of institutionalization in violation of the Americans with Disabilities Act, Rehabilitation Act and Medicaid,” the families say in their complaint against the Illinois Department of Healthcare and Family Services and its director Julie Hamos.
     The class of severely disabled children who need an in-home nurse at least 12 hours a day seek an injunction against new state rules that will reduce or eliminate their Medicaid benefits, which they claim will force them to be institutionalized.
     “The plaintiffs and class consist of approximately 1,050 medically fragile disabled children who currently receive funding from the defendant for skilled nursing services at their home at an average monthly cost between $11,000 to $16,000, depending upon their medical needs, so that they do not have to be institutionalized or hospitalized for their entire life at a rate of approximately $55,000 per month,” the complaint states.
     The children are 1 to 15 years old, require at least 12 hours a day of nursing care, and their family income exceeds 500 percent of the federal poverty rate, or $95,450 for a family of three.
     One child, M.K., “requires intensive vigilant nursing care that consists of: tracheostomy care, monitoring of respiratory and cardiac status, suctioning, monitoring of fragile statue of g-button and trach, meticulous skin care including many topical creams/ointments that are applied daily, and several medications that are administered on a daily basis via g-tube,” according to the complaint.
     The Illinois Medicaid Home and Community-Based Services Waiver for Children that are Medically Fragile, Technology Dependent (MF/TD) allows “eligible children to remain in their own homes rather than in an institutional setting,” the class says.
     Under the waiver, “the State of Illinois is required to show that the cost of providing home and community based services is less (or at least cost neutral) than the cost of providing those services in an institution (hospital). The hospital level of care is approximately $55,000 per month and the current cost of providing community based services (Skilled Nursing and Medicaid) is about 1/3rd the hospital level of care so cost neutrality is satisfied,” the complaint states.
     The new waiver, effective Sept. 1, “eliminates the hospital level of care and substitutes a nursing facility as being the level of care which the medically fragile children require. Accordingly, in order to be cost neutral, the comparable institution (nursing facility) rate would be used instead of the hospital rate. The nursing facility rate will be approximately $9,400 per month, which means the State of Illinois will not approve community based skill nursing and Medicaid funding for the medically fragile children which exceeds the sum of $9,400 per month. …
     “By Illinois reclassifying 99 percent of the persons in the MF/TD Waiver as only needing a nursing facility level of care as opposed to a hospital level care in order to cap or limit the ‘medical necessity’ level of funding, the state is placing the plaintiffs and putative class at risk of institutionalization,” the class claims.
     In addition, the new waiver will exclude medically fragile children from families with incomes of over 500 percent of the federal poverty rate.
     “A medically fragile child will be unable to receive in-home medically necessary services when the average cost of those services is $188,000 from a family that is excluded because they make too much money (in excess of $95,450 for a family of three),” the complaint states. (Parentheses in complaint.)
     The class seeks an injunction prohibiting the new MF/TD waiver from reducing or denying class members’ Medicaid benefits.
     States across the nation have instituted similar budget cuts since the financial crisis began, which often have been challenged by class actions. As in this case, the classes nearly always object that institutionalizing the sick people will cost far more in the long run.
     Lead plaintiff T.B., 5, his parents, Thomas and Margaret Boyce, and the rest of the class are represented by Robert Farley Jr., of Naperville.

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